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Filing # 13564505 Electronically Filed 05/12/2014 04:47:18 PMRECEIVED, 5/12/2014 16:48:45, John A. Tomasino, Clerk, Supreme Court
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS ..............................................i
TABLE OF CITATIONS . . . . .. . . . . . . . . . ... . . .. . . . . . . . . . . . . . . .. . .. . ..ii
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF THE FACTS .........................................3
SUMMARY OF THE ARGUMENT . ................... . ..................30
ARGUMENT
I. THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE
JACKSON ' S GUILT OF PREMEDITATED MURDER. . . . . . . . . . . . . . 3 3
II. THE PROSECUTOR'S COMMENTS DURING THE GUILT-PHASE
CLOSING ARGUMENT, IMPUGNING THE TESTIMONY OF THE
DEFENSE EXPERT WITH PERSONAL OPINION, FACTS
UNSUPPORTED BY EVIDENCE, AND THE AUTHORITY OF
HIS OFFICE DESTROYED JACKSON'S RIGHT TO A FAIR
TRIAL, REQUIRING A NEW ONE. . . . . . . . . . . . . . . . .. . . . . . . . .44
III. THE EVIDENCE IS INSUFFICIENT TO SUPPORT THEESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATING
CIRCUMSTANCE WHERE, ASSUMING JACKSON'S COMPLICITY
IN THE MURDER, THERE WAS NO EVIDENCE JACKSON HAD
KNOWLEDGE OR CONTROL OVER THE MANNER OF DEATH . . . . . . . 53
IV . THE DEATH SENTENCE IS DISPROPORTIONATE . . . . . . . . . . . . . . 5 6
V. THE TRIAL COURT ERRED IN SENTENCING KIM JACKSON
TO DEATH BECAUSE FLORIDA'S CAPITAL SENTENCINGPROCEEDINGS ARE UNCONSTITUTIONAL UNDER THE SIXTH
AMENDMENT PURSUANT TO RING V. ARIZONA. . . . . . . . . . . . . . . 61
CONCLUSION ....................................................63
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
CERTIFICATE OF FONT SIZE ......................................64
APPENDIX ....................................................65
TABLE OF CITATIONS
CASES PAGE{S)
Apprendi v. New Jersey, 530 U.S. 446 (2000) ..............61
Archer v. State, 613 So. 2d 446 (Fla. 1993) ..............53
Ballard v. State,923 So. 2d 475 (Fla. 2006) .................33,34,35,37
Bertolotti v. State, 476 So. 2d 130 (Fla. 1985) ..........48
Bigham v. State, 995 So. 2d 207 (Fla. 2008) ..............46
Bottoson v. Moore, 833 So. 2d 693 (Fla.),cert. denied, 537 U.S. 1070 (2002) ...............61,62
Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985)............52
Cantero v. State, 612 So. 2d 634 (Fla. 1993) .............46
Coolen v. State, 696 So. 2d 738 (Fla. 1997) ........41,42,43
Cox v. State, 555 So. 2d 352 (Fla. 1989) ..............34,39
Davis v. State, 90 So. 2d 629 (Fla. 1956) ................34
DeFreitas v. State, 701 So. 2d 593 (Fla. 4th DCA 1997) ....49
Enmund v. Florida, 458 U.S. 782 (1982) .............32,59,60
Evans v. State, 62 So. 3d 1203 (Fla. 4th DCA 2011)........50
Ferrell v. State, 680 So. 2d 390 (Fla. 1996) .............56
Frank v. State, 121 Fla. 53, 163 So. 223 (1935) ..........34
Fullmer v. State, 790 So. 2d 480 (Fla. 5th DCA 2001)......50
Gorby v. State, 630 So. 2d 544 (Fla. 1993) ...............46
Green v. State, 715 So. 2d 940 (Fla. 1998) ...............43
Hoefert v. State, 617 So. 2d 1046 (Fla. 1993) ............41
11
TABLE OF CITATIONS
(Continued)
CASES PAGE ( S )
Hutchinson v. State, 882 So. 2d 943 (Fla. 2004) ..........48
Jackson v. State, 127 So. 3d 447 (Fla. 2013) .............45
Jackson v. State, 575 So. 2d 181 (Fla. 1991) .............60
Johnson v. State, 720 So. 2d 232 (Fla. 1998) .............58
King v. Moore, 831 So. 2d 143 (Fla.),cert. denied, 537 U.S. 1067 (2002) ..................62
Kirkland v. State, 684 So. 2d 732 (Fla. 1996) ............43
Larkins v. State, 739 So. 2d 90 (Fla. 1999) ..............58
Lindsey v. State,14 So. 3d 211 (Fla. 2009) ..................33,34,35,39
Marshall v. Crosby, 911 So. 2d 1129 (Fla. 2005) ..........62
Merck v. State, 975 So. 2d 1054 (Fla. 2007) ..............45
Miller v. State, 782 So. 2d 426 (Fla. 2d DCA 2001) .......50
Omelus v. State, 584 So. 2d 563 (Fla. 1991) ..............53
Pacifico v. State,642 So. 2d 1178 (Fla. 1st DCA 1994) ..............46,52
Pait v. State, 112 So. 380 (Fla. 1959) ...................51
Parish v. State, 98 Fla. 877, 124 So. 444 (Fla. 1929) ....39
Perez v. State, 919 So. 2d 347 (Fla. 2005) ............53,54
Peterson v. State, 376 So. 2d 1230 (Fla. 4 * DCA 1979)....51
Pierre v. State, 88 So. 3d 354 (Fla. 4°¹ DCA 2012) .....46,50
Power v. State, 886 So. 2d 952 (Fla. 2004) ...............49
111
TABLE OF CITATIONS
(Continued)
CASES PAGE{S)
Ramos v. State, 579 So. 2d 360 (Fla. 4 DCA 1991) ........46
Ray v. State, 403 So. 2d 956 (Fla. 1981) .................45
Reynolds v. State, 934 So. 2d 1128 (Fla. 2006) ............33
Ring v. Arizona, 536 U.S. 584 (2002) ..................32,61
Roberts v. State, 510 So. 2d 885 (Fla. 1987),cert. denied, 485 U.S. 943 (1988) ...................41
Robertson v. State, 699 So. 2d 1343 (Fla. 1997) ..........59
Robinson v. State, 610 So. 2d 1288 (Fla. 1992) ...........48
Ruiz v. State, 743 So. 2d 1 (Fla. 1999) ...............48,52
Ryan v. State, 457 So. 2d 1084 (Fla. 4 ¹ DCA 1984) ........50
Ryan v. State, 457 So. 2d 1084 (Fla. 4th
Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970) ..........45,51
Scoggins v. State, 726 So. 2d 762 (Fla. 1999) ............49
Simpson v. State, 3 So. 3d 1135 (Fla. 2009) ..............46
Spann v. State, 985 So. 2d 1059 (Fla. 2008) ..............48
State v. Dixon, 283 So. 2d 1 (Fla. 1973),cert. denied, 416 U.S. 943 (1974) ...................56
State v. Johnson, 616 So. 2d 1 (Fla. 1999) ...............51
State v. Steele, 921 So. 2d 538 (Fla. 2005) ..............62
Stephenson v. State, 31 So. 3d 847 (Fla. 3d DCA 2010) ....49
Terry v. State, 668 So. 2d 954 (Fla. 1996) ...............59
1v
TABLE OF CITATIONS
(Continued)
CASES PAGE(S)
Tindal v. State, 803 So. 2d 806 (Fla. 4th DCA 2001) ......49
Tison v. Arizona, 481 U.S. 137 (1987) ....................60
Toler v. State, 95 So. 3d 913 (Fla. 15 DCA 2012) .........46
Tuff v. State, 509 So. 2d 953 (Fla. 4 DCA 1987) .........46
Un.ited States v. Garza, 608 F.2d 659 (5* Cir. 1979)......49
United States v. Young, 470 U.S. 1 (1985) ................51
Williams v. State, 622 So. 2d 456 (Fla. 1992) ............53
Williamson v. State, 994 So. 2d 1000 (Fla. 2008) .........48
Wilson v. State, 493 So. 2d 1019 (Fla. 1986) ..........41,59
CONSTITUTIONS AND STATUTES
United States ConstitutionAmendment VI ........................................61
Florida Statutes (2009)Section 921.141 ..................................61,62
Florida Statutes (1995)Section 782.04(2) ...................................44
v
IN THE SUPREME COURT OF FLORIDA
KIM JACKSON,
Appellant,
v. CASE NO. SC13-2090L.T. CASE NO. 16-2008-CF
STATE OF FLORIDA,
Appellee,
STATEMENT OF THE CASE1
On July 24, 2008, the Duval County Grand Jury indicted Kim
Jackson on a charge of premeditated murder with a weapon in the
October 2004 death of Debra Pearce. R1:1-3.
On April 15-17, 2013, Jackson was tried by jury before
Duval County Circuit Judge James H. Daniel.2 The defense motions
for judgment of acquittal were denied, RlO:648-654, 765, and at
the state's request, a principal instruction was given.
R10:779, R11:851. The jury found Jackson guilty as charged.
R3:585, R11:881.
The penalty phase was held April 26, 2013. The jury
recommended death by a vote of 8 to 4. R4:605, 13:1148.
' The thirteen-volume record on appeal is designated as "R,"followed by the volume number and page number. The three-volumesupplemental record is designated as SR, followed by the volumenumber and page number.2 Duval County Circuit Judge Elizabeth A. Senterfitt presidedover the proceedings through September 13, 2011.
1
A Spencer hearing was held on June ll, 2013. The state
presented victim impact testimony and the defense presented the
testimony of David Douglas, an investigator. R6:1061-1086.
On October 1, 2013, the trial judge adjudicated Jackson
guilty as charged and sentenced him to death, finding three
aggravating circumstances: 1) previous conviction of another
violent felony; 2) Jackson was on parole for his 1992 conviction
for aggravated assault in Cook County, Georgia, at the time of
the murder; 3) the murder was especially heinous, atrocious, or
cruel. In mitigation, the court bundled the 67 proposed
mitigating circumstances into 12, finding: 1) Jackson is a good
father and husband, and shares the love of his family, 2)
Jackson is a good sibling and son, and shares the love of his
relatives in Georgia, 3) Jackson experienced a difficult
childhood and upbringing, 4) Jackson is a nice, generous,
helpful person and friend, 5) Jackson is athletic, dependable,
and helped children learn sports, 6) Jackson was a gentleman and
respectful of women, 7) Jackson is a religious person, 8)
Jackson is a hard-working person, 9) Jackson always had a
positive outlook on life, 10) Jackson's friends and associates
will continue to foster a positive relationship and visit him
while he is incarcerated, 11) Jackson has low-average
intelligence, 12) Jackson respects the process, has been polite
and cooperative throughout the proceedings. R4:714-761; 6:1143.
2
Notice of appeal was timely filed October 22, 2013. R4:766.
STATEMENT OF FACTS
Guilt Phase
State's Case
Around midnight on October 18, 2004, Chester Norville, III,
a neighbor of Debra Pearce, 49, walked by Pearce's house and
noticed the side gate was open. Pearce's van was not in the
driveway. Norville hadn't seen the van in several days.
Norville entered the house through the open back sliding glass
door and found Pearce face down in the kitchen in a pool of
blood. Norville then went home to call 911. Norville said
Pearce was a drug dealer. He had bought and smoked crack at her
home several times a week with her boyfriend, Mike Brown. Other
people also came by to buy and smoke crack. R8:369-83.
Pearce's mother, Bobbi Jenkins, last spoke to her daughter
on October 16, around 1 a.m. R8:388-89.
The medical examiner (ME) who conducted the autopsy
testified that Pearce bled to death from stab wounds. She had
been dead for several days and was in the early stages of
decomposition. A knife with a 5-inch blade, which was still in
her chest, delivered one of two- fatal blows. The knife went
through her left bra cup, staying outside the chest, and then
cut into the subclavian vein and artery, which feed the right
arm, and into the back of the scapula. The second fatal wound
3
was a stab wound under the chin that cut the jugular vein,
causing profuse bleeding. There were two other stab wounds to
the neck, one into cartilage, and one superficial. The ME
described a superficial laceration to the forehead, a shallow
stab to the chin, and a shallow laceration to the left cheek.
There also was a deep cut across the little finger, which could
be a defensive wound, and an incision on the forearm, which
could be from warding off a blow. There were other minor blunt
force injuries to the head and face, evidencing a struggle. The
ME didn't know for sure but thought it possible Pearce had been
conscious throughout the attack. R10:628-40. The estimated
time of death was early a.m. October 17th or late on the 16th
Pearce was 5'6", 172 pounds. R10:642-46.
Michael Knox, the crime scene investigator, retrieved a
dark hair from Pearce's back right lower leg. R9:405. Five
other hairs that looked out of place were collected. R9:439.
Leigh Clark, a DNA analyst, testified that DNA extracted
from the root of the hair found on Pearce's calf matched
Jackson. Clark testified the first stage of hair growth, the
anagen stage, is when the hair is firmly attached to the head
and has a fleshy root with cells with DNA. The anagen stage can
last from months to years. In the second stage, the root starts
to die, the cells start to die, and the hair is no longer
actively growing. Sometimes partial DNA profiles can be
4
obtained from hairs in the second stage, or no DNA at all. The
final stage is telogen hair, which is still attached to the
scalp but no longer attached to the root and is not suitable for
DNA testing. Because of the amount of DNA present on the hair
recovered from Pearce's leg, Clark believed the hair was
actively growing and not naturally shed. An actively growing
hair would require some degree of force to dislodge. Once
pulled, the hair could be transferred from one item to another.
R9:462-66, 472. Clark could not say how long the hair had been
present or from what area of the body it originated. R9:473.
Three of the other hair fibers were not suitable for DNA
testing, the fourth gave a male profile, and the fifth matched
the victim. R9:466.
Spatter radiating out from the blood on the floor indicated
the killing took place in the kitchen. R9:409. The knife in
Pearce's chest came from the knife block on the kitchen counter.
R9:411. On the edge of the kitchen sink, just above the body,
was a fingerprint in blood. The sink was removed, and the print
processed and photographed. R9:417-18, 21-23. The blood on the
sink matched Pearce. R9:441. Blood spatter on the counter was
moving upward and therefore coming from below. R9:417. In
Knox's opinion, the print on the kitchen sink was left after the
bloodshed. The presence of a print or a hair does not mean the
person that left the print or hair killed the victim. The hair
could have been transferred from another room. R9:442, 450.
On the carpet beneath the body was an open folding knife.
R9:417. The knife handle had DNA consistent with Pearce. The
blade had a mixture of 2-3 individuals, which included Pearce
but excluded Jackson as a contributor. R9:467.
Nothing of value was found on the knife in Pearce's chest.
R10:608.
Red staining on the carpet and tile floors, enhanced with
luminal, revealed footprints going from the kitchen to the back
(master) bedroom, where drawers were open and poured out.
R9:414-15, 431. The bloody footprints included a distinctive
shoe impression as well as a sock-clad impression, which Knox
said could mean there were two people, or that a person had
removed a shoe. R9:424-25. Fingerprints from the master
bedroom and a palm print from the doorjamb of the master bedroom
closet were collected. R9:426. A television from the living
room entertainment center had been removed, R9:432, and a DVD
player and VCR had been removed from the second bedroom.
R9:443. There was no blood transfer around the living room
entertainment set. Knox testified that if people came into the
house after the murder and stole things, they may have
contaminated the crime scene. Animals also could have
6
contaminated the scene. Knox could not recall if a cat had been
collected and taken to a shelter. R9:447-48.
Pearce's vehicle was located at London Town Apartments at
1591 Lane Avenue South, which is 1-1/2 miles from Ramona and
Lane. R10:765. Blood on the armrest and steering wheel cover
contained a mixture of DNA that matched Pearce. DNA from a
second donor was male. R10:765-66.
Detective Waldrup learned during the investigation that
people had been in and out of Pearce's house, carrying TVs and
other items, shortly before police arrived. R9:568. Police
identified some of those people, including Leron and Lydon Faust
and Jacobi Huff. TV's, VCR's, and DVD's were taken. The Fausts
admitted being there but Huff was never questioned. R10:608-09,
613-14.
The latent prints initially were submitted to Michelle
Royal at the Jacksonville Sheriff's Office lab. Royal indicated
the print from the kitchen sink was of no value. R9:586. When
Detective Waldrup heard Pinellas County had some special
equipment that could enhance the print, he took the sink to
Pinellas, but the enhancement was not helpful. Carol Beachum of
Pinellas informed Waldrup the print was of value but the
computer could not identify it. R9:586. The print was then
submitted to the FBI. The FBI determined there was a print of
value but the computer could not identify it. R9:587.
7
Subsequently, the Florida Department of Law Enforcement (FDLE)
identified DNA from the hair found on Pearce's body as belonging
to Jackson. Jackson's fingerprints were then sent to the FBI.
R9:569-71. The palm print found on the doorjamb also was sent
to the FBI. R9:570-73. Police never identified the palm print.
R9:585, R10:612. A print found on a video was identified as
belonging to Richard Thomas, a friend of Pearce's, who is now
dead. R9:574. Thomas -was ruled out as a suspect after Waldrup
spoke to Pearce's boyfriend, Mike Brown, who was in jail when
the murder was committed. R9:583-84.
Four years later, on January 22, 2008, after receiving the
fingerprint and DNA results, police interviewed Jackson in
Georgia and showed him photos of Pearce, Pearce's house, and the
neighborhood. The 3-4 minute audio recorded interview was
played for the jury. After reading Jackson his rights, the
officers said they were investigating a homicide in Jacksonville
and asked Jackson if he recognized the woman in the photograph.
Jackson said, no, and the detectives then asked, "Did you murder
this woman?" Jackson responded, no. When police identified the
woman as Debra Pearce, Jackson said he didn't know her. Shown
photos of her house and neighborhood, Jackson said he'd been in
the area but not in her house. The photo of Pearce was a blurry
black and white photo. Pearce had red hair. R9:576-83, 588-90,
593-95.
8
During the investigation, many names came up, including
Catab Robinson, Billy Carol, Jamie Shiver, "Red," and Amber
Martinez. Some people were ruled out as suspects, while others
were never located, such as Catab Robinson. R9:597-99.
Two fingerprint analysts testified for the state.
Jacqueline Slebrch has worked at the FBI at Quantico for five
years. R9:480. A print is "of value" for identification when
Slebrch believes "there is sufficient quantity and quality of
information that if at any point we were given the corresponding
known print we would be able to make an identification."
R9:486. The FBI lab uses a blind verification process in which
an additional examiner who does not know the original examiner's
conclusion conducts an independent analysis and evaluation.
R9:487.. The first examiner in this case was Laura Hutchins, who
is no longer with the FBI. She received a series of photos,
decided there was a fingerprint "of value," and searched the
database, but no match was returned. R9:492. Slebrch took over
after Hutchins left and conducted her own independent analysis
after Jackson's prints were sent to compare to the latent print.
R9:491-92. When making a comparison, the analyst marks on the
photo of the latent print all the characteristics she sees,
places the print next to the 10-point card of known prints, and
then goes through each one, using a magnifying glass. Szebrch
identified State's Exhibit 39 as the photo she examined and
9
State's Exhibit 83 as the side-by-side comparison of the latent
print and Jackson's print. R9:493-94. In this case, the photo
has splotches on it, which.could potentially cause distortion.
Also, if excess liquid such as blood is on the hand, and the
hand touches with a certain amount of pressure, the substance
coating the ridges will get pushed into the spaces between the
ridges, the furrows, and that will end up being behind the
impression of the furrows. R9:495-96. Slebrch concluded the
print from the sink was Jackson's because she "did not notice
any significant dissimilarities to exclude that finger," and "I
found a sufficient amount of finding quality of info to be in
agreement." R9:496. The palm print was excluded from Jackson.
R9:497. On cross-examination, Slebrch testified the sink print
was of "average" quality. There is an absence of information in
the areas of the splotches. The print identified as Jackson's
was one of multiple prints on top of each other. Slebrch
compared the print towards the bottom. The other two were of no
value. R9:503-04. Slebrch had not seen a situation where a
latent left on an object was preserved by blood going on top of
it but testified that this could occur. A certain number of
points are not required to make a comparison. R9:506-07. The
latent print was identified as Jackson's right ring finger.
R9:510.
10
William Schade has been the records manager at the Pinellas
County Sheriff's Office for 20 years. Schade began fingerprint
training in 1971. R9:516. As recently as 15 years ago,
fingerprint examiners did not always adhere to the principles of
science. Science leaves the door open for additional
information and changing conclusions. Fingerprint people were
trained to examine the evidence carefully, come to a conclusion,
and stand by it, "come hell or high water." Now, "we can no
longer say we're 100% certain." It's a preponderance of
evidence, it can be possible or plausible conclusions but
science never says 100%. R9:518. Some labs do blind
verification though Pinellas does not. R9:522. The Pinellas
lab received the photo in 2004. Pinellas had a vacuum metal
deposition chamber, which processes fingerprints using vaporized
gold and zinc. The extra processing didn't help, and the lab
ended up working with the Polaroid photos it received. The lab
determined the print was of value, ran it through the database,
and then packaged it up and filed it away. R9:524-526. When
asked to look at the photo again in May 2012 and compare it to a
known print, the lab identified the print as Jackson's. The lab
did not know what the FBI had done. R9:526-27. Asked how the
comparison is made, Schade said, "I've looked at a lot of
fingerprints and so you get a feel for it, you know, what is
normally commonly found." R9:530. The analyst marks off where
11
ridges split in two, where they end, where they divide, and
where they come back together. Schade marked 8-9 points on this
latent, which matched the known print. In doing this, he had to
take into account that when a wet substance is squeezed into the
ridges, it makes the ridges white, not black. R9:531-33. The
latent print was made by Jackson's right ring finger, "there's
no other possible conclusion." Ten years ago, Schade would have
said, "I'm 100% certain," but that's not scientific. Now, he
says, "I'm 100% confident." R9:535.
On cross-examination, Schade explained that in the past 10-
15 years, some testimony was discovered to have been wrong,
mistakes were made, and there was criticism. Analysts haven't
changed how they examine or analyze, what's changed is "the way
we present our testimony." He can have 100% confidence but not
scientific certainty. Asked if it were possible he could be
wrong, Schade said, "No." If he followed protocols, "it's not
possible I made a mistake." R9:538-39. In 2004, the lab wasn't
asked to render an opinion, only to help with the processing.
R9:557. They ran a couple of searches but no one requested they
do so. R9:558. In 2008, they were asked to document what they
had done in 2004. Then, in 2012, they were asked to do a
comparison. R9:542. The print involved a double tap, about 4
impressions. R9:544-45. Three of the prints are not
identifiable, there's not enough detail present, not enough
12
information. R9:549. The splotches on the print of value hide
what's under them but don't change what's present. R9:550-51.
Schade's comparison was based on 5 dots at the top and 3-4 dots
at the bottom. R9:551. No minimum number of points is required
to make a comparison. It's not just the number that is relevant
but also the spacing. R9:553. Here, one portion of the print
matched Jackson's print. R9:554. Based on that, Schade
determined with "100% certainty" the latent print and known
print were the same. R9:551.
Defense Case
The defense presented four alibi witnesses, an expert
latent print examiner, Michelle Royal, and Mr. Jackson.
Debra Jackson is Kim Jackson's wife. They got married in
June 2000. Mrs. Jackson is an accountant. In October 2004, she
and her husband were living at Diamond Inn on the west side of
Jacksonville, off Lane. They previously had lived at the
Mission Springs Apartments, off Timuquana and Roosevelt, in the
neighborhood of Bennington Drive and Seaboard. Every year, her
husband goes home to Adele, Georgia, around the time of his
birthday, October 13. Adele is just north of Valdosta, 2-1/2
hours from Jacksonville. In 2004, October 13 was a Wednesday,
and he left for Adele that Friday, October 15, with his cousin,
Lucy Baker. Lucy came back on Sunday night, the 17th. JaCkson
got back the following Friday, October 22, by bus, and Debra saw
13
him as soon as he got back. She was first asked to recall that
weekend in 2008. She remembered that particular birthday
because her husband hadn't gotten a full paycheck that week,
there was no money for the trip, and she was furious with him
for going. R10:659-65. She did not see her husband leave with
his cousin. She knew his whereabouts from the 15th until the 22°
from his phone calls. He called her from his father's house,
which is a 229 number, meaning he was in Georgia. He called on
Monday morning, the 18th, and said he missed his ride and needed
bus fare to get home. She received calls from him throughout
the week as he tried to make arrangements to get back, as she
wasn't sending him any money. R10:669-70.
Penny Williams is Kim Jackson's brother. Penny has been a
nurse aid for 17 years and works at Behavioral Health in
Valdosta, Georgia. In 2004, Penny lived in Cook County,
Georgia, with her grandfather. Birthdays were a big thing for
her brother to be home and celebrate with his friends and
family. That year, on the Wednesday after his birthday, he came
by to visit and asked Penny to take him to the bus station
because he had missed his ride. She first took him to see his
friend, Rose Franklin, at her workplace to get money for the bus
ticket. He met Franklin on the porch because visitors weren't
allowed to go in the facility. Penny then took him to the bus
station, but the bus had already left, so she brought him back
14
to Adele. Penny had to work the next day, so his father took
him to the bus station. R10:672-76. Kim was close to his
grandfather, and during that week, he came in and out, visiting
his grandfather and Penny's boys. She was sure about the
weekend because he brought his daughter to see her. She was
first asked to remember that weekend in 2008. R10:677-79.
Lillie Rose Franklin has known Jackson for 18 years and is
a good friend. Franklin is a social worker at Parkwood, a
center for the mentally retarded. She works Monday through
Friday. In October 2004, Jackson came by to borrow money for a
bus ticket. His sister was out in the car. Franklin doesn't
remember the specific day he came by but she remembers it was
around his birthday because she had heard he was in town but
didn't see him until he came by asking for money. She was first
asked about this 4-5 years later. R10:681-86.
Walter Jackson is Kim Jackson's father. Walter saw his son
in October 2004. He always came home for his birthday. As best
Walter could recall, Kim came home a few days after his birthday
that year. Most of the time, he stayed with Walter. If not, he
would be with other relatives. Walter didn't recall the date
Kim left but remembered taking him to the bus station in
Valdosta, which is 30 minutes away, on a Wednesday or Thursday
evening. Walter saw him get on the bus. He had missed the
first bus. R10:687-91.
15
Michelle Royal works for the Jacksonville Sheriff's Office,
in the latent print unit. In her 29 years at the JSO and 22
years as latent print examiner, she has examined hundreds of
thousands of latent prints. She examines prints on a daily
basis. She attends conferences and classes to stay up to date.
She has testified in court as a latent print examiner more than
175 times. In October 2004, Royal was asked to review 12 latent
lift cards in this case. She evaluated the prints to determine
if there were any prints of value, searched the latent prints in
the AFIS system, and compared the prints to those of the victim.
At a later time, she was asked to evaluate a latent print that
came off a sink. She determined that the print did not have
sufficient information present to identify it and classified it
as of no value. R10:702-06. The image appeared to have a
double tap, i.e., the finger touched the surface and may have
touched again right next to it. There were two prints that
covered more area, with several other impressions surrounding
those two. R10:707.
On cross-examination, Royal said she identified a latent
print on a bottle of cologne to the victim and a latent print to
Mr. Thomas on a VHS cassette. She did not compare the print on
the sink to Jackson because there was not enough information to
take that step. If enough information is present, such as
pattern type, a person may be excluded even if there are not
16
enough characteristics present to actually compare a print.
R10:709-10. When shown State's Exhibit 84 and asked what the
red markings on the pictures meant to her, Royal responded they
were points that had been plotted to illustrate individual ridge
characteristics, as well as their relationship to one another,
which is something she does in her cases. Asked to look at the
two prints quickly, Royal agreed the latent print and the known
print had similarities. Based on the flow of the ridges, she
could not immediately say the two prints did not come from the
same person. She did not agree that the plotting on the latent
print corresponded to similar characteristics on the known
print. They were the same as far as the pattern type and the
flow of ridges but some of the individual ridge characteristics
that were plotted on the unknown print appeared to be white
ridges and some appeared to be black ridges, and when dealing
with a print that is color-reversal, some of the points may be
off. R10:711-13. The Jacksonville lab, like the Pinellas
County lab, does not do blind verifications. Royal alone made
the call initially. If giving her opinion specifically in
reference to exclusion, she would not exclude the print as
coming from Jackson. Royal agreed that when she testifies that
a print matches a person, she is one hundred percent certain.
R10:713-15. Royal identified the photo in State's Exhibit 87 as
the Polaroid she took in 2004, which is the photograph she
17
examined. She agreed it was possible for digital enhancement to
make a print of no value a print of value and that this is
scientifically accepted in the fingerprint community. R10:16.
On redirect, Royal testified that when she did the print
analysis in 2004, she was not initially one hundred percent
certain it was a print of no value. She initially received a
photograph taken by the evidence technician. She requested a
better photo and was given the opportunity to photograph the
latent print herself. She reviewed that photo and felt there
were a lot of things going on that would not allow her to plot a
sufficient number of individual ridge characteristics that could
be used to identify the latent to a set of known prints. Asked
to look at the two sets of prints in Exhibit 87, magnified from
the Polaroid, Royal said there appeared to be four different
prints and pointed out each one. As to the large one, she could
not plot anything in the bottom half of it. The circles or
bubbles in the photograph appeared to be water marks or some
liquid that may have dried and was present when the photo was
taken. The circles block off information regarding the ridge
definition, which also created difficulty in determining whether
the print was of value. R10:717-20.
Kim Jackson testified he met Debra Pearce through her
boyfriend, Michael Brown. He bought crack cocaine from both
Pearce and Brown. He knew Pearce as "Peppermint Pattie," had
18
seen her between 5 and 10 times, and had been to her house about
5 times. He was living in Mission Springs Apartments at the
time, off Timuquana and Catoma. He bought drugs from Bròwn 7-8
times and from Pearce 4-5 times. He met them at the BP gas
station at Timuquana or walked into the neighborhood to buy from
Pearce because his ex-son-in-law, Benjamin Watson, lived across
the street from her. While at her home, he had moved a couch
and gotten a rag out of her disposal. A friend of Pearce's
named "Red" was usually there. When he helped with the
disposal, he looked up under the sink to see if there was some
kind of mechanism to make it unwind. This was months before the
homicide. R10:743-44. He also vacuumed her car once at the BP
station so they wouldn't look suspicious. When Detective
Waldrup interviewed him in Georgia four years later, he
distanced himself because he felt Waldrup was trying "to put me
into something that I wasn't involved in." He had been to
Pearce's home about a week before his trip to Georgia that year.
In 2004, his birthday, October 13, was on Wednesday. He went to
Adele, Georgia, the Friday after his birthday with his cousin,
Lucy Baker. He went straight to his dad's house. His sister,
his granddaddy, his cousin, and other relatives were also in
Adele. His wife did not go with him because she had been
complaining about money being short and was against his going.
He was supposed to come back on Sunday but he wanted to stay
19
longer and enjoy his friends. He came back late Thursday by
Greyhound. His father took him to the bus station. He left
Valdosta around 9, 9:30, stopped in Waycross, Georgia, where he
waited for another bus, and got back to Jacksonville around
midnight. He got off at Martin Luther King and Myrtle Street,
walked to Lucy's house, and called his wife to come get him
around 12:45. R10:722-32.
Jackson had never had a fight with Pearce or Brown. As far
as he knew, Pearce did not do drugs, she just sold them. He
would call her, and she would meet him at the BP with the drugs
or tell him to come to the house. When he got back from Georgia
that year, his son-in-law told him Pearce had been murdered. He
didn't hear anything about her again until the detectives came
to talk to him. At first, he did not recognize the picture of
Pearce they showed him. Her hair was usually red, and she never
looked "raggedy." The photo they showed him looked like an
older lady, and the face and eyes made her look dead. When they
showed him the photos of her house, he recognized her house, but
Waldrup had said he was a homicide detective, and Jackson felt
they were trying to "implement" him in something he had nothing
to do with, so he lied. R10:734-39.
Penalty Phase
The state presented the victim impact testimony of Bobbi
Jenkins, Debra's Pearce's mother, and Lindsey Pearce, Pearce's
20
daughter. Lindsay testified that at the time her mother was
killed, she was living with her mother and grandmother. She
stayed at her grandmother's because her mother lived in a bad
neighborhood with prostitutes walking around. R12:924-32.
A stipulation was read to the jury that Jackson was
convicted of robbery in Cook County, Georgia, on April 20th
1988; was convicted of aggravated assault in Cook County,
Georgia, on February 17, 1992; was convicted of armed robbery in
Cook County, Georgia, on August 16, 2005; and was on felony
probation for the above-mentioned aggravated assault at the time
the present murder was committed. R12:942-43.
Melissa Moore testified Jackson robbed the Days Inn, in
Adele, Georgia, on May 23, 2005·, during the 11-3 shift. A
surveillance video, which was played for the jury, showed Moore
letting Jackson inside after he requested a room. As Moore
stood behind the desk preparing the paperwork, they conversed,
and then Jackson walked around the counter with a gun in his
hand. She told him to "get out of here, buddy. Here. Here's
the money." He told her not to follow him, and she said, "Get
out of here so I can lock the door back." After Jackson left,
Moore called 911 and reported the robbery. R12:932-36.
Bobby Stanley, a Georgia Bureau of Investigation agent,
testified he was the victim of an aggravated assault committed
by Jackson on September 21, 1991. Stanley and two others were
21
working undercover, trying to buy crack from their vehicle.
They earlier had talked to Jackson about buying crack, but that
didn't pan out. When they tried to buy crack from an older man,
Jackson ran up, pushed the older man out of the way, pulled up
his shirt, and pulled out a gun. Stanley took off and didn't
see whether Jackson pointed the gun at him. R12:940-41.
The defense presented 15 lay witnesses and 1 expert
witness.
Lequitta Weldon has known Kim Jackson for 20 years.
Jackson coached her softball team, was a good coach, and worked
well with the players. He was encouraging, a caring person, and
a good role model. Jackson and his wife had attended church
with Lequitta. R12:944-49.
Walter Jackson, Kim's father, testified he was in the Army
for 14 years, stationed at Ft. Polk, Ft. McClellan, and Ft.
Benning, Germany, and Korea, when Kim was young. When Kim was a
teenager, Walter kept him on post with him during the summers.
Walter's first wife, now deceased, was Viola Jackson. He had 4
children with her. Kim's mother was Merle Jean Tucker. Kim
played a lot of sports and was good in sports. Kim has been in
prison in Georgia since 2005. R12:950-61.
Laquinta Jackson, 23, is Kim's younger half-sister. Walter
is their father. Laquinta grew up with Walter and her mother,
Joann Posey. Her brother worked, took her to baseball games,
22
and was a positive influence on her. He encouraged her to stay
in school, not get involved with the wrong people, make good
choices. She loves him very much and respects him.
R12:963-66.
Kenyetta Jackson is Kim's daughter. Kenyetta grew up in
Nashville, Georgia, which is near Adele, Georgia. She finished
high school in 2010. She now lives in Savannah, Georgia, where
she is attending Savannah State, majoring in biology. Since her
father has been incarcerated, she has stayed in contact with him
by writing and visiting. He has been a positive influence,
encouraging her to stay in school, graduate from college, get a
good job, do the right things. R12:968-73.
Penny Williams is Kim's sister. They had the same mother
and Penny is the youngest of five. Penny is 13 years younger
than Kim. Kim was a positive person. He was very protective of
Penny. He taught her sports because he was good at everything,
baseball, softball, football. Since he's been in prison, she
and her family have visited, written, and talked to Kim on the
phone. She loves him a lot. R12:974-77.
Ridmone Durr grew up with Kim in Adele. They played midget
league baseball and football together as kids and adult softball
when they got older. Kim was a great athlete and ball player, a
hard worker, and a good teammate. He always gave 110% effort.
He was always very encouraging to the rest of the team. He was
23
a leader. He also was a humble person. Durr drives semi-
trucks, and Jackson sometimes rode with him and helped him make
deliveries and unload the truck. He did most of the work
because Durr would be tired from the driving. Kim was always a
mild person and would give people the shirt off his back if he
could. Durr never saw him be disrespectful to anyone. Durr
still considers Kim one of his best friends. R12:978-84.
Dr. Jerry Valente is a forensic psychologist, licensed to
practice in Georgia and Florida for 15 to 18 years. He has
testified in court about 300 times. Dr. Valente met with
Jackson on April 4 and 15 regarding his competency to proceed to
trial. Dr. Valente found Jackson competent. He also did an IQ
test. Jackson's full-scale IQ is 84, which is in the low-
average range. He saw no evidence of psychosis. Jackson was
cooperative, well-mannered, and respectful to authority. Some
defendants are very resistant in such situations, Jackson
wasn't. Based on his mental functioning, he would be considered
a slow learner. There appeared to be a processing disorder, a
learning disability. He may have been in special education in
school, but there is no brain impairment. R12:987-96.
Stephen Stafford, 40, has lived in Adele, Georgia all his
life. He grew up in the same neighborhood with Jackson, played
sports with him, and umpired softball games. Jackson was very
motivated, a good athlete, hard worker, had a good work ethic.
24
He played on the Soldiers travel softball team. He motivated
everybody and treated his teammates with respect. He was very
kind. He taught people how to do something if they didn't know
how. He was hands-on. R12:997-1000.
Jerome Durr, 4.0, lives in Adele and knew Kim growing up
primarily through sports. Jerome saw in Kim a determination to
go all-out. He was dedicated to the team and dependable. He
was a good teammate and wanted you to give your all. It was all
positive. Adele was a typical small town. Everybody knows
everybody. It was working class mostly and poverty, no
affluence. Kim had an older brother, and they grew up with
their grandfather. R12:1001-05.
Annie Scott lives in Jacksonville. She has known Kim
Jackson and his wife since early 2000, when she met them in
church. Jackson was a very respectable and mannered person. He
had prayer meetings and Bible study at his home for church
members. Mr. and Mrs. Jackson were always care-giving to other
people and helpful. Kim always offered to help when something
needed doing at church functions. He was giving of his time and
dependable. He probably mentioned his prior run-ins with the
law and he expressed regret for some of the things he had done
and he wanted to do better. R12:1005-10.
Nathan Bernard lives in Jacksonville, works as a waiter,
and volunteers at the 12-step program at the Duval County Jail.
25
Bernard first met Jackson about ten years ago, when they worked
together in construction. They were residential framers.
Jackson was a hard worker. Everyone loved him. He kept morale
really high. He was very reliable, someone you could depend on.
He was a jokester and kept people laughing. He encouraged
people, too. Jackson spent time with Bernard's family, too. He
came over and would throw ball with Bernard's then-four-year-old
son. When Bernard ran into Jackson again at the jail a few
months ago, Jackson's first words were to ask about Nathan, Jr.
Jackson has been to every meeting, which are weekly, and has
shared his struggles about sobriety. When Jackson shares his
stories, it's quiet as a button. When he speaks, the class
quiets down and listens to what he has to say. R12:10ll-15.
Tracy Dyal lives in Jacksonville and is the manager at
Bryant Displays, which does displays and graphics for trade
shows. Her father and brother also work there. She met Jackson
in the early 2000's when her father hired him to work for the
company. He worked for several years and was a fantastic
worker. He was an extremely hard worker and did a good job. He
was prompt. He was wonderful. He mainly worked in the shop
with the construction part of the job but would do anything they
asked him to. If she needed him to clean the bathroom, he would
do it. He worked whenever they needed him, sometimes late into
the evening. Tracy often worked late into the night with him.
26
He was protective because the business is in a rough area. He
always walked her out to her car and watched out for any other
men or women that were working. Tracy sometimes brought her
son, Justin, to work, and Jackson interacted wonderfully with
Justin and made sure he was safe. Jackson was a trustworthy
employee. Tracy and other people in the store felt better when
he was there. R12:1016-22.
Don Meaders owns Bryant Displays. Meaders met Kim through
his wife, Debra, who did the company's accounting and
bookkeeping. Jackson was a very good worker. He was good at
building and construction. Sometimes they worked long hours on
evenings and weekends to get the work done. Jackson was always
willing to work when they needed him and never complained. He
last worked for them in 2004, when things slowed down. Meaders
was aware of Jackson's prior record when he hired him. Jackson
was very upfront and honest about it, and they would sit and
talk and sometimes pray together, and the character he saw in
Jackson did not give him any reason to be concerned about his
past. R12:1023-27.
Timothy Bryant, 26, is Kim Jackson's step-son. His mother
is Debra Jackson. Timothy is in the Air Force and lives in
Washington, D.C. Jackson came into Timothy's life when Tim was
12 or 13 and still living in Hahira, Georgia. They moved to
Jacksonville in 2000. Tim finished school in 2006 and enlisted
27
in the military in 2009. He is now a senior airman. Jackson
was genuinely compassionate with Timothy and viewed him like a
biological child. They had a close relationship. Jackson
always encouraged Tim to do the right thing and supported him
when he made decisions others may have looked down on. He's had
a very positive influence in his life, more so than Tim's
biological father. Tim has stayed in contact with his father
since he's been incarcerated, by visiting or telephone. He
loves his father and will continue to visit him. R12:1028-33.
Eileen Yvonne Gibbs met Kim Jackson five years ago through
his wife, Debra. Since then, she has talked to him many times,
visited him in jail, and exchanged written correspondence with
him. He has always been upbeat, encouraging, and motivated. He
always has a good word to say about someone and displays genuine
concern for people and helping them make positive choices in
their lives. He talks with the other inmates, encourages them
to redirect their thoughts and actions while they are still
young and have a chance. The guys have a lot of respect for
him, and he was able to dee.scalate situations that otherwise
would have gotten out of hand. In prison, Jackson would be a
positive influence in the lives of those who cross his path.
R12:1036-37.
Debra Jackson testified she and Kim got married on June 9,
2000. Kim has been a good husband and provider and an excellent
28
father and grandfather. She has visited him continuously since
he was incarcerated in May 2005, written him letters, and
accepted phone calls from: him. If in prison, he will change
lives. It's his character to encourage others. He has learned
from the things he's been through and tries to help others not
make the same mistakes. October 2004 is the last remembrance
anyone has of him in Adele. R12:1039-53.
In rebuttal, over defense objection, the state presented
the testimony of Carol Adeyeye, court liaison at the Georgia
Department of Corrections, that Jackson had nine disciplinary
reports (DRs) during 2007. Adeyeye testified DRs are internal
complaints and do not involve major infractions that a person
would be prosecuted for. R12:1084-85.
29
SUMMARY OF ARGUMENT
Issue 1. The state's evidence.was insufficient to
establish that Jackson committed the murder. The only evidence
linking Jackson to Pearce's murder was a hair on Pearce's leg
and a bloody fingerprint on the kitchen sink above her body.
The state did not establish that this evidence was left at the
scene at the time of the murder, as Jackson admittedly had been
in Pearce's kitchen before, and the state's fingerprint expert
testified the fingerprint could have been preserved by blood
being deposited on top of it after it was left on the sink. In
addition, four witnesses testified that Jackson wás in Adele,
Georgia, for his birthday when the murder occurred. Even a deep
suspicion or probability of guilt is not enough for a
conviction. In order to satisfy the standard of beyond a
reasonable doubt, the evidence must conclusively establish the
defendant's guilt to the exclusion of all other inferences. The
evidence in this case does not meet that standard.
However, even if the hair and/or fingerprint evidence were
sufficient to establish Jackson's presence when the murder was
committed, this evidence does not prove Jackson killed Pearce or
was a principal to the killing, in light of the evidence--two
sets of bloody footprints and unknown DNA on one of the knives
used--that more than one person was present at the time of the
murder.
30
The evidence also failed to establish the murder was
premeditated. The evidence showed a struggle involving two
knives, one of which came from the knife block in Pearce's
kitchen. There were no eyewitnesses and no evidence of what
immediately preceded the murder. The evidence is entirely
consistent with a spontaneous fight and the absence of
premeditation.
Issue 2. The prosecutor's comments during the guilt phase
closing argument require a new trial. In closing argument, the
prosecutor impugned the testimony of the defense fingerprint
expert, Michelle Royal, based on matters outside the evidence,
including the prosecutor's asserted personal knowledge of how
Royal operates based on his past experience with her. These
highly improper comments directly concerned the principle
evidence of guilt and rendered Jackson's conviction
fundamentally unfair.
Issue 3. The trial court erred in finding the aggravating
circumstance of especially heinous, atrocious, or cruel where no
evidence established that Jackson killed Pearce or was
substantially involved in her killing to the extent that he knew
in advance how she was going to die.
Issue 4. Absent the especially heinous, atrocious, or
cruel aggravator,. the death sentence is disproportionate, as
this Court has found death unwarranted in cases involving a
31
similar balance of aggravation and mitigation. The death
penalty also violates the requirement of individualized
punishment set forth in Enmund v. Florida, 458 U.S. 782, 801
(1982), because the evidence was insufficient to show Jackson
"took life, attempted to take life, or intended to take life."
Issue 5. This Court should re-examine its prior cases and
declare Florida's capital sentencing proceedings
unconstitutional pursuant to Ring v. Arizona.
32
ARGUMENT
Issue 1
THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE
JACKSON'S GUILT OF PREMEDITATED MURDER.
The only evidence linking Jackson to Pearce's murder is a
hair found on Pearce's leg and a fingerprint in blood on the
kitchen sink above her body. Because the state's fingerprint
expert testified the blood could have been deposited on top of a
print placed on the sink at an earlier time, and Jackson
admitted having been in Pearce's house and kitchen before, the
hair and fingerprint do not prove Jackson was at Pearce's house
at the time of the murder. The state therefore failed to
present competent evidence from which the jury could infer guilt
to the exclusion of all other inferences. Jackson's conviction
cannot stand.
"[W]here a conviction is based wholly upon circumstantial
evidence, a special standard of review applies." Lindsey v.
State, 14 So. 3d 211, 215 (Fla. 2009)(quoting Reynolds v. State,
934 So. 2d 1128, 1145 (Fla. 2006)); see also Ballard v. State,
923 So. 2d 475 (Fla. 2006). The special standard of review
requires that the circumstances lead "to a reasonable and moral
certainty that the accused and no one else committed the offense
charged. It is not sufficient that the facts create a strong
probability of guilt. They must be inconsistent with
33
innocence." Frank v. State, 121 Fla. 53, 163 So. 223,, 223
(1935), quoted in Lindsey, 14 So. 3d at 215.
As this Court explained in Ballard:
Evidence which furnishes nothing stronger than asuspicion, even though it would tend to justify thesuspicion that the defendant committed the crime, isnot sufficient to sustain conviction. It is theactual exclusion of the hypothesis of innocence whichclothes circumstantial evidence with the force ofproof sufficient to convict. Circumstantial evidencewhich leaves uncertain several hypotheses, any one ofwhich may be sound and some of which may be entirelyconsistent with innocence, is not adequate to sustaina verdict of guilt. Even though the circumstantialevidence is sufficient to suggest a probability ofguilt, it is not thereby adequate to support aconviction if it is likewise consistent with areasonable hypothesis of innocence.
923 So. 2d at 482 (quoting Davis v. State, 90 So. 2d 629 (Fla.
1956)).
Here, a hair on Pearce's leg and a fingerprint on the
kitchen sink above her body were identified as belonging to
Jackson. This evidence proved only that Jackson had been in
Pearce's house at some point in time, which he admitted, but is
insufficient to prove he was there the night Pearce was
murdered. In cases analytically similar to the present case,
this Court held the circumstantial evidence was insufficient to
prove the defendant's guilt beyond a reasonable doubt.
In Cox v. State, 555 So. 2d 352 (Fla. 1989), police found a
hair, some O-type blood, and a boot print, none of which was
definitely the defendant's, in the victim's car. A hair
34
comparison expert testified the hair was consistent with Cox's
hair but the Court stated that "hair analysis and comparison are
not absolutely certain and reliable." 555 So. 2d at 353. Cox
did have 0-type blood, and the boot print appeared to have been
made by a military-type boot similar to boots Cox owned, but the
print was not compared to Cox's boot. Cox also had part of his
tongue bitten off, and a surgical assistant testified it was
consistent with someone other than Cox biting it. The Court
concluded this evidence established "only-a suspicion, rather
than proving beyond a reasonable doubt, that Cox, and only Cox,
murdered the victim." Id.
In Ballard, investigators determined that one of four
fingerprints found on the bed frame near the victim's upper
torso belonged to Ballard. 923 So. 2d at 478. A forensic
expert determined that one of several hairs found in the hand of
the victim were consistent with the arm hair of Ballard but
could not say whether the hair had fallen out naturally or been
forcibly removed. The Court concluded that because Ballard was
a frequent guest in the victim's apartment, the presence of his
hair and fingerprint in her apartment failed to prove he was the
person who robbed and killed her. Id. at 482.
In Lindsey, the defendant was convicted of felony murder in
the shooting death of Joanne Mazollo, a pawn shop clerk. The
circumstantial case against Lindsey consisted of 1) a Royal
35
Crown bag containing jewelry was taken during the robbery, 2)
Lindsey's ex-wife, Nikki, found a Crown Royal bag containing
jewelry in a closet of an apartment where she sometimes stayed
with Lindsey and several other individuals, including LoRay
(LoRay already had been convicted of robbery and second-degree
murder in Mazollo's death), 3) Lindsey told Simms, whom Lindsey
had met in jail, that Simms should always kill witnesses and
that Lindsey had to do that once. The evidence did not show the
bag of jewelry found in the closet was the bag of jewelry
missing from the pawn shop or that Lindsey placed the bag in the
closet or ever had possession of it before he sold the items at
.a flea market. The Court vacated Lindsey's conviction,
reasoning:
The State failed to produce any evidence in thiscase placing Lindsey at the scene of the crime at thetime of the murder. . . .
Consequently, we find that the evidence presentedto support an inference of guilt does not exclude allother inferences. While we agree that the evidencehere does seem suspicious, even a "deep suspicion theappellant committed the crime charged is notsufficient to sustain conviction." Williams v.State, 143 So.2d 484, 488 (Fla. 1962); seealso Ballard, 923 So.2d at 482 ("Suspicions alonecannot satisfy the State's burden of proving guiltbeyond a reasonable doubt....").
14 So. 3d at 216.
Similarly, the circumstantial evidence in the present case,
while suspicious, is insufficient to support a conviction, as
36
the state presented no conclusive evidence that the hair and
fingerprint were left at Pearce's house at the time of the
murder.
Leigh Clark testified that because of the amount of DNA
present on the hair found on Pearce's leg, she believed it was
in the actively growing stage and not naturally shed. Clark
testified an actively growing hair requires some degree of force
to dislodge but did not say how much force. Once removed, a
hair can be transferred from one item to another. R9:462-66,
472. Clark could not say how long the hair had been present or
from what area of the body it originated. R9:473. Jackson
testified he had been to Pearce's house many times, including
one week before the murder, and that he had engaged in physical
tasks while there, including moving a sofa and fixing the
disposal. The evidence therefore leaves open the reasonable
possibility that the hair was pulled out during one of these
activities and later transferred to Pearce's leg. If the hair
was deposited on the sofa, it could have been transferred to
Pearce when she sat on the sofa. Or, as the defense argued
below, a cat could have transferred the hair from one place to
another such that it ended up on Pearce before or after the
murder. No evidence shows the hair fell or was removed from
Jackson's body at the time of the murder. Jackson's hair on
37
Pearce's leg is no more suspicious than the defendant's hair
found in the victim's hand in Ballard.
The fingerprint concededly is more problematic, given that
it had blood on it. Apart from the conflicting evidence as to
whether the print was of value for comparative purposes, the
state's fingerprint expert, Jacqueline Slebrch, testified it was
possible blood was deposited on top of a print that had been
placed there earlier. Jackson testified that when he fixed
Pearce's disposal, he looked up under the sink. No evidence
showed Pearce was a tidy person who necessarily would have
cleaned the edge of the sink during the intervening weeks. The
state's evidence therefore did not conclusively establish when
the print was placed on the sink, and Jackson's testimony
established an innocent explanation for the print on the sink.
Jackson also had a solid alibi for the time of the murder.
Four witnesses testified he was in Adele, Georgia, celebrating
his birthday, which he did every year, when Pearce was killed.
The state attempted to cast doubt on the witnesses' memories by
pointing out that they were not asked about Jackson's 2004
birthday until 2008, four years later. Although the jury was
not informed of this until the penalty phase, October 2004 was
the last time Jackson spent his birthday in Adele, as he has
been in prison since his May 2005 arrest for armed robbery. In
addition to the evidence of more than one person in the house at
38
the time of the murder, there were other hairs and prints that
were either not identified to anyone or were excluded as
belonging to Jackson (e.g., the palm print found on the door
jamb).
The circumstantial evidence in this case raises a susp1clon
of guilt, but that is not enough. As this Court said in
Lindsey, "even a deep suspicion the appellant committed the
crime charged is not sufficient to sustain conviction." 14 So.
3d at 216 (internal quotation and citation omitted). Rather,
circumstantial evidence "must be of a conclusive nature and
tendency, leading on the whole to a reasonable and moral
certainty that the accused, and no one else, committed the
offense." Parish v. State, 98 Fla. 877, , 880, 124 So. 444, 445
(Fla. 1929); see also Cox v. State, 555 So. 2d 352, 353 (Fla.
1989)("circumstantial evidence must lead to a reasonable and
moral certainty that the accused and no one else committed the
offense charged"). The evidence would rise to this level only
if the circumstances were such that the print could have been
placed on the sink only at the time the crime was committed.
This requirement was not met here because the record does not
preclude the reasonable possibility that the print was placed on
the sink at some time before the murder. The evidence therefore
was insufficient to sustain Jackson's conviction.
39
Assuming for the sake of argument that the fingerprint was
placed on the sink at the time of the murder, the evidence
nonetheless is insufficient to prove Jackson killed Pearce, or
was a principal to her murder. At the state's request, the
trial judge gave a principal instruction based on evidence that
more than one person was involved. As the prosecutor stated:
I think it's appropriate based on the evidence that'spresented in this case. Specifically that there isevidence that there may be more than one personinvolved. Specifically that there are - there are twosets of footwear impressions and although that may beevidence of one person taking off their shoes, thereis evidence before this jury that more than one personparticipated in the crime.
In addition, there was a knife found in³ thevictim's body which may indicate a second personinvolved. The DNA on that knife is primarily thevictim's, although there was some unknown DNA that wasexcluded as coming from the defendant. Under thatfactual scenario the jury could find that thedefendant was present and an active participant inthis murder but that someone else was involved andthey together committed this crime.
R10:777-78.
The state argued below that the foot impressions and knife-
DNA is. evidence that two people may have been involved in
Pearce's murder. This evidence, however, shows only that two
people may have been present when Pearce was killed, not that
two people were involved in the killing. There is no evidence
that Jackson, if present, participated in the crime. Pearce was
3 The prosecutor apparently was referring to the knife foundunder Pearce's body, not the knife in her chest. Nothing ofvalue was recovered from the knife in Pearce's chest. R10;608.
40
a drug dealer, and there was testimony that lots of people
bought and used drugs at her house. One of the knives used was
from the knife block in the kitchen. Even if Jackson was
present at the time of the murder, someone else may have killed
Pearce during a drug-fueled argument.
The evidence also does not prove the murder was
premeditated. Premeditation is the essential element that
distinguishes first-degree murder from second-degree murder.
Wilson v. State, 493 So. 2d 1019 (Fla. 1986). Premeditation is
"more than a mere intent to kill; it is a fully formed conscious
purpose to kill." Roberts v. State, 510 So. 2d 885, 888 (Fla.
1987), cert. denied, 485 U.S. 943 (1988). The purpose to kill
"'may be formed a moment before the act but must exist for a
sufficient length of time to permit reflection as to the nature
of the act to be committed -and the probable result of that
act.'" Coolen v. State, 696 So. 2d 738, 741 (Fla. 1997)(quoting
Wilson, 493 So. 2d at 1.021).
Premeditation sought to be proved by circumstantial
evidence must be inconsistent with every other reasonable
inference. Coolen, 696 So. 2d at 741; see also Hoefert v.
State, 617 So. 2d 1046 (Fla. 1993). If the state's proof fails
to exclude a reasonable hypothesis that the homicide occurred
other than by premeditated design, a verdict of premeditated
murder cannot be sustained. Coolen.
41
In Coolen, the defendant stabbed the victim to death during
a backyard party. The víctim, Kellar, had six stab wounds,
including two defensive wounds to his forearm and hand, and deep
stab wounds to the chest and back. The state argued
premeditation was proved by the following circumstantial
evidence: 1) Barbara Kellar's testimony that Coolen suddenly
attacked the victim, Kellar, without warning or provocation, 2)
Caughman's testimony that Coolen had threatened him with the
knife earlier that evening, that Kellar and Coolen had fought
over a beer, and that Kellar had tried to fend off Coolen during
the attack, 3) the deep stab wounds to the chest and back and
defensive wounds, which were inconsistent with Coolen's claim of
self-defense.
The Court reversed Coolen's conviction for first-degree
murder, concluding:
Although this evidence is consistent with an unlawfulkilling, we do not find sufficient evidence to provepremeditation. Barbara Kellar testified that the twomen had not been arguing and that Coolen simply "cameout of nowhere" and starting stabbing her husband.Jamie Caughman described an ongoing pattern ofhostility between two intoxicated men that culminatedin a fight over a beer can. The testimony of theseeyewitnesses is contradictory and neither providessufficient evidence of premeditation. While thenature and manner of the wounds inflicted may becircumstantial evidence of premeditation, Holton v.State, 573 So.2d 284, 289 (Fla. 1990), the stab woundsinflicted here are also consistent with an escalatingfight over a beer (Jamie Caughman's account) or a"preemptive" attack in the paranoid belief that thevictim was going to attack first (Coolen's version).
42
696 So. 2d at 741-42; see also Green v. State, 715 So. 2d 940
(Fla. 1998)(finding insufficient evidence of premeditation where
victim stabbed three times and manually strangled, Green had
threatened to "kill [the victim] before the night was out," but
there were no witnesses to the events immediately preceding the
homicide); Kirkland v. State, 684 So. 2d 732 (Fla. 1996)
(premeditation not established where victim died of severe knife
wounds to neck, where no indication Kirkland possessed intent to
kill prior to actual homicide and there were no witnesses to
events immediately preceding the homicide).
In the present case, similar to Coolen, there were a number
of stab wounds, including two fatal wounds, one to the chest and
one under the chin, as well as two defensive wounds, indicating
a struggle. Here, however, as in Green and Kirkland, there were
no eyewitnesses to the crime and no evidence of what preceded
the homicide. One of the knives involved came from the knife
block in the kitchen, which is consistent with a spur-of-the-
moment or escalating fight. As in Coolen, Green, and Kirkland,
the state's evidence fell short of establishing premeditated
murder. The evidence showed, at most, the state of mind
required for second-degree murder.4
4 Second-degree murder is "an unlawful killing of a human being,when perpetrated by any act imminently dangerous to another andev1ncing a depraved mind regardless of human life, although
43
Issue 2
THE PROSECUTOR'S COMMENTS DURING THE GUILT-PHASECLOSING ARGUMENT, IMPUGNING THE TESTIMONY OF THE
DEFENSE EXPERT WITH PERSONAL OPINION, FACTS
UNSUPPORTED BY EVIDENCE, AND THE AUTHORITY OF HIS
OFFICE DESTROYED JACKSON'S RIGHT TO A FAIR TRIAL,
REQUIRING A NEW ONE.
During closing argument, the prosecutor told the jury he
had put the defense fingerprint expert, Michelle Royal, on the
stand many times; that Royal was "old school;" and that she "was
taught" to testify "it's a hundred percent, no doubt;" and that
she "was taught" to stand by a decision, once made. "She made
the call [] and she's going to stand by that conclusion because
that's what she does in court." These comments improperly
implied that Royal was taught to testify she is "100% certain"
even if she isn't certain, and to stand by an initial
conclusion, even if she later is presented with countervailing
evidence. Because there was no evidence Royal was taught to
testify in this way, and because the prosecutor asserted
personal knowledge of how Royal operates based on his experience
with her in other cases, the prosecutor's comments were highly
improper. This case presented a battle of fingerprint experts.
Indeed, Jackson's guilt rested on which expert the jury
believed. The prosecutor's improper denigration of Royal thus
without any premeditated design to effect the death of anyparticular individual." s. 782.04(2), Fla. Stat. (1995).
44
went to the heart of the conviction, rendering his trial
fundamentally unfair. A new trial is required.
Although Jackson's counsel made no objection to the
improper argument, it is well-settled that unobjected-to
comments are grounds for reversal if the error is fundamental.
Merck v. State, 975 So. 2d 1054, 1061 (Fla. 2007). Fundamental
error is error that "goes to the foundation of the case or goes
to the merits of the cause of action." Ray v. State, 403 So. 2d
956, 960 (Fla. 1981)(quoting Sanford v. Rubin, 237 So. 2d 134,
137 (Fla. 1970)), quoted in Jackson v. State, 127 So. 3d 447
(Fla. 2013). That has occurred here.
The state's case for guilt largely depended on whether the
latent print on the deceased's kitchen sink could be identified
as belonging to Jackson. This issue was highly contested, the
evidence consisting of conflicting expert testimony on both
sides. Jacqueline Slebrch and William Schade testified for the
state that the print matched Jackson's right little finger.
Michelle Royal, testifying for the defense, testified the print
was not of sufficient quality to make a comparison, i.e., the
print was of "no value." During closing argument, the
prosecutor argued, as follows:
Now, Michelle is a good woman. I've put her onthe stand before in many cases to convict defendantsof crimes. She's just wrong on this one. It happens.It was interesting, the reason I asked her thisquestion about the hundred percent and the reason why
45
Bill Schade spent all that time talking about thechange is Michelle Royal is old school. She wastaught you walk into court, it's a hundred percent, nodoubt, this is the way I am. She's also taught thatonce a lab makes a decision, that decision is final.She runs that lab, she made the call tha.t wasn't aprint of value and she's going to stand by thatconclusion because that's what she does in court. Ahundred percent.
Bill Schade told you that's really not where thebusiness - not where the expertise is going. You sawa lot of that from the FBI. Jacqueline Slebrch.She's the new school. She's been taught new. That'swhy they're doing the whole blind verifications.That's why they're doing those things.
R11:836-37 (emphasis added).
It is impermissible for a prosecutor to comment in closing
argument on matters outside the evidence produced at trial,
Bigham v. State, 995 So. 2d 207, 214 (Fla. 2008); Ryan v. State,
457 So. 2d 1084 (Fla. 4th DCA 1984); Tuff v. State, 509 So. 2d
953 (Fla. 4th DCA 1987); to eXpress a personal belief as to any
matter in issue, Toler v. State, 95 So. 3d 913 (Fla. 18 DCA
2012); Pacifico v. State, 642 So. 2d 1178 (Fla. 1st DCA 1994);
to assert personal knowledge of the facts in issue, except when
testifying as a witness, Pierre v. State, 88 So. 3d 354 (Fla. 4th
DCA 2012); Cantero v. State, 612 So. 2d 634 (Fla. 1993); or to
bolster a witness's testimony by vouching for his or her
credibility. Simpson v. State, 3 So. 3d 1135 (Fla. 2009); Gorby
v. State, 630 So. 2d 544, 547 (Fla. 1993); Ramos v. State, 579
So. 2d 360 (Fla. 4 DCA 1991).
46
The prosecutor's statements about Michelle Royal and
Jacqueline Slebrch violated all of the above proscriptions.
There is no evidence in the record that Royal is "old school;"
there is no evidence in the record that Royal "was taught" to
testify her conclusion is 100% accurate; and there is no
evidence in the record that Royal "was taught" she must stand by
a decision once a decision has been made. The only evidence
about how Royal testifies was her own testimony that she makes
an identification in court only when she believes the match is
100% accurate. The prosecutor's comments about how Royal was
taught therefore were impermissible comments on facts not in
evidence. Moreover, by telling the jurors he had put Royal on
the stand many times, the prosecutor placed before the jury his
personal knowledge and opinion of her. In so doing, his
comments went far beyond the evidence and were tantamount to the
prosecutor becoming a witness in the case. After casting doubt
on Royal's credibility, "she's old school," the prosecutor
improperly bolstered the testimony of the state's expert by
comparing her to his version of Royal: "Jacqueline Slebrch.
She's the new school. She's been taught new." Once again,
there is no evidence in the record that Slebrch was taught
differently than Royal.
"Improper bolstering occurs when the State places the
prestige of the government behind the witness or indicates that
47
information not presented to the jury supports the witness's
testimony." Hutchinson v. State, 882 So. 2d 943, 954 (Fla.
2004); see also Spann v. State, 985 So, 2d 1059, 1067 (Fla.
2008). Here, the prosecutor took on the role of an impeaching
witness, and, in the guise of arguing, impugned the professional
opinion and credibility/veracity of the key defense witness on
the basis of asserted personal knowledge.
The role of counsel in closing argament is to assist the
jury in analyzing the evidence, not to obscure the jury's view
with personal opinion, emotion, and non-record evidence. Ruiz
v. State, 743 So. 2d 1 (Fla. 1999); see also Williamson v.
State, 994 So. 2d 1000, 1012 (Fla. 2008); Robinson v. State, 610
So. 2d 1288, 1290 (Fla. 1992); Bertolotti v. State, 476 So. 2d
130, 134 (Fla. 1985). As the Court said in Ruiz:
The role of the attorney in closing argument is"tö assist the jury in analyzing, evaluating andapplying the evidence. It is not for the purpose ofpermitting counsel to 'testify' as an 'expertwitness.' The assistance permitted includes counsel'sright to state his contention as to the conclusionsthat the jury should draw from the evidence." UnitedStates v. Morris, 568 F.2d 396, 401 (5th Cir.1978)(emphasis in original). To the extent anattorney's closing argument ranges beyond theseboundaries, it is improper. Except to the extent hebases any opinion on the evidence in the case, he maynot express his personal opinion on the merits of thecause of the case or the credibility of witnesses.Furthermore, he may not suggest that evidence whichwas not presented at trial provides additional groundsfor finding defendant guilty.
48
743 So. 2d at 4 (quoting United States v. Garza, 608 F.2d 659,
662 (5th Cir. 1979)).
Here, the prosecutor's comment, "she's just wrong on this
one," is a conclusion that could be drawn from the evidence.
That comment did not stand alone, however, but was impermissibly
buttressed by assertions of personal knowledge regarding Royal's
training and testimony in other cases, matters that could not
reasonably be inferred from the evidence. The prosecutor did
not merely imply that the state had "unique knowledge" that was
not presented to the jury, see Tindal v. State, 803 So. 2d 806,
810 (Fla. 4th DCA 2001), the prosecutor asserted that it
absolutely had such knowledge.
The impact of these errors was fundamental. In determining
fundamental error, the court reviews the totality of the
circumstances. Power v. State, 886 So. 2d 952, 963 (Fla. 2004);
Scoggins v. State, 726 So. 2d 762 (Fla. 1999). A reading of the
cases shows that fundamental error has been found where the
nature or extent of the defendant's guilt presented a close
question and the prosecutorial misconduct tainted an issue
critical to the resolution of that question. See Stephenson v.
State, 31 So. 3d 847 (Fla. 3d DCA 2010)(:ba trial for aggravated
manslaughter of 13-month-old, prosecutor's comment that mother
contemplated aborting decedent was fundamental error); DeFreitas
v. State, 701 So. 2d 593, 599 (Fla. 4 DCA 1997)(prosecutorial
49
misconduct "deprived the defendant of a fair trial in this
otherwise close case" and "may very well have tipped the scales
in favor of the State"); Fullmer v. State, 790 So. 2d 480 (Fla.
5th DCA 2001)(prosecutor's disparaging comments about Fullmer and
misstatement of law was fundamental error, where credibility of
Fullmer was key); Ryan v. State, 457 So. 2d 1084 (Fla. 4 * DCA
1984)(improper closing argument was fundamental error; "in a
close case, such as the one at hand, where the jury is walking a
thin line between a verdict of guilt and innocence, the
prosecutor cannot be allowed to push the jury to the side of
guilt with improper comments"); Pierre, 88 So. 3d at 356
(fundamental error where prosecutor improperly argued victim
recanted prior identification out of fear, and victim was only
eye-witness in case with scant physical evidence); Evans v.
State, 62 So. 3d 1203, 1205 (Fla. 4°' DCA 20ll)(fundamental error
where case was "highly contested, the evidence consisting, in
large part, of conflicting testimony between eyewitnesses on
both sides"); Miller v. State, 782 So. 2d 426 (Fla. 2d DCA 2001)
(fundamental error where prosecutor improperly implied deputy's
testimony amounted to expert testimony and mischaracterized
another witness's testimony on issue critical to defendant's
guilt).
Here, the identification of the fingerprint found on the
sink was the crux of the state's case. To find Jackson guilty
50
of Pearce's murder, the jury had to find the fingerprint was of
value and was Jackson's. To find that the fingerprint was of
value, the jury had to reject Royal's testimony. Impeachment of
Royal thus was essential to the state's case. Because the
prosecutor's improper argument concerned the principal evidence
of guilt, the prosecutorial misconduct goes to the core of the
conviction and "the foundation of the case." See Sanford v.
Rubin, 237 So. 2d at 137. Such error is "basic to the judicial
decision under review and equivalent to a denial of due
process." See State v. Johnson, 616 So. 2d 1, 3 (Fla. 1999)
(citations omitted).
Furthermore, even if a contemporaneous objection had been
made, the damage could not have been undone because it would
have been impossible to erase the prejudicial information from
the jurors' minds. See Peterson v. State, 376 So. 2d 123Q, 1234
(Fla. 4 ¹ DCA 1979)(When prosecutorial comments are "of such a
character that neither rebuke nor retraction may entirely
destroy their sinister influence ... a new trial should be
granted, regardless of the lack of objection")(citation
omitted); see also Pait v. State, 112 So. 380, 385 (Fla. 1959)
(same). Courts have long recognized a jury's susceptibility to
credit the prosecutor's viewpoint. See United States v. Young,
470 U.S. 1, 18 (1985)("prosecutor's opinion carries with it the
imprimatur of the Government and may induce the jury to trust
51
the Government's judgment rather than its own view of the
evidence"); Brooks v. Kemp, 762 F.2d 1383, 1399 (11°' Cir. 1985)
("[T]he prosecutorial mantle of authority can intensify the
effect on the jury of any misconduct"); Ruiz, 743 So. 2d at 4
("The power and force of the government tend to impart an
implicit stamp of believability to what the prosecutor says");
Pacifico, 642 So. 2d at 1184 ("jury can be expected to attach
considerable significance to a prosecutor's. expressions of
personal beliefs"). Here, the prosecutor not only told the jury
his personal belief, he revealed to the jury the purported
extra-record information that informed that belief. That the
prosecutor's opinion and knowledge of Royal was based on having
tried many cases with her is not information the jury would have
been able to forget. There is no curative instruction that
could have rehabilitated Royal in the eyes of the jury.
Jackson is entitled to have the jury weigh the conflicting
expert testimony without the taint of the prosecutor's
impermissible argument. A new trial is required.
52
Issue 3
THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE ESPECIALLY
HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATING CIRCUMSTANCE
WHERE, ASSUMING JACKSON'S COMPLICITY IN THE MURDER,
THERE WAS NO EVIDENCE JACKSON HAD KNOWLEDGE OR CONTROL
OVER THE MANNER OF DEATH.
The especially heinous, atrocious, or cruel aggravating
circumstance (EHAC) cannot be applied vicariously to a principal
to the murder if there is a possibility that the defendant did
not directly cause or have knowledge or control over the manner
of death. See Perez v. State, 919 So. 2d 347, 380 (Fla. 2005)
(reversing application of EHAC aggravator where evidence showed
defendant did not know victim would be killed during course of
felony or manner in which she would be killed); Williams v.
State, 622 So. 2d 456 (Fla. 1992)(error in finding EHAC where
defendant who ordered killings did not order a particular manner
to be used); Archer v. State, 613 So. 2d 446 (Fla. 1993)(error
to instruct jury on EHAC where defendant contracted murder
knowing gun would be used but not knowing victim would die
begging for his life); omelus v. State, 584 So. 2d 563 (Fla.
1991)(error to instruct jury on EHAC where defendant contracted
with another to kill the victim but did not know how the murder
would be committed and thought gun would be used rather than
knife).
Here, as discussed in Issue 1, supra, if this Court
determines the fingerprint is surI1clent to establish Jackson's
53
complicity in Pearce's murder, the print does not establish that
Jackson directly killed her or knew how the murder would be
committed. Two sets of bloody foot impressions were found at
the scene, and the knife under Pearce's body had DNA on it that
was excluded as being Jackson's. This evidence indicates that
more than one person may have been involved in the murder.
Jackson's fingerprint and hair may have been deposited in the
aftermath of a murder in which he was not directly involved.
In Perez, this Court disapproved the EHAC aggravator even
though the evidence showed Perez was involved in the preparation
for the robbery, covering up the murder, and pawning the
victim's belongings. 919 So. 2d at 381. There was evidence
that Perez left a bloody shoe print next to the body, his own
testimony placed him at the crime scene, and he admitted
disposing of his shoes because they had blood on them. Id. at
370. Perez also cut the victim's phone lines and helped dispose
of the murder weapon. The only eyewitness testimony, however,
was Perez's recorded statement in which he denied striking the
victim and stated that the co-defendant committed the murder of
his own accord. On this record, this Court found there was no
evidence establishing that Perez knew the victim would be killed
or that he would be killed in the manner in which it was carried
out. Id. at 381.
54
Here, there were no eyewitnesses to Pearce's murder, what
precipitated it, or what came after. The only thing linking
Jackson to the murder is the bloody fingerprint on the sink and
the hair on Pearce's leg. Neither of these pieces of evidence
prove Jackson knew Pearce would be killed, or the manner in
which she would be killed.
Accordingly, the trial court erred in instructing the jury
on and in finding the EHAC aggravating circumstance. This error
cannot be deemed harmless, and a new penalty phase is required.
55
Issue 4
THE DEATH SENTENCE IS DISPROPORTIONATE.
Because death as a punishment is unique in its finality and
its total rejection of the possibility of rehabilitation, it has
been reserved for the worst of first-degree murders. State v.
Dixon, 283 So. 2d 1, 7 (Fla. 1973), cert. denied, 416 U.S. 943
(1974).
As explained in Issue 3, supra, the EHAC aggravator was
improperly found. This leaves two valid aggravators, the prior
violent felony aggravator and the under sentence of imprisonment
aggravator.
The prior violent felony aggravator, though serious, is not
"especially weighty." See, e.g.,.Ferrell v. State, 680 So. 2d
390, 391 (Fla. 1996)(prior violent felony aggravator is
"especially weighty" where based on prior murder or similar
prior violent assault). Here, the prior felony aggravator was
based on Jackson's prior convictions in Cook County, Georgia,
for aggravated assault in 1992 and armed robbery in 2006.
R4:721-23.5 The victim of the aggravated assault, an undercover
agent, testified that Jackson brandished a weapon during a
narcotics transaction (between the agent and another individual)
5 The trial judge did not consider the 1988 robbery as there wereno details of that robbery, and the court could not determinewhether, .under Georgia law, a robbery would automaticallyinvolve the use or threat of violence. R4:722.
56
and then fled. The videotape of the armed robbery shows that
Jackson pulled a gun on the clerk, calmly asked for cash, which
she gave him, and left when the clerk told him to get out. No
shots were fired, and no one was injured in either incident.
The second aggravating factor, under sentence of
imprisonment, applies because at the time of the murder, Jackson
was on felony probation for the 1992 aggravated assault
conviction. This aggravator thus is based in part on the same
facts that comprise part of the prior violent felony aggravator.
Furthermore, the aggravated assault was 12 years old at the time
of the current offense and 20 years old at the time of
sentencing.
Although the trial court found no statutory mitigating
circumstances, the trial court found numerous nonstatutory
mitigating circumstances, 67 proposed factors which the court
bundled into 12 mitigating circumstances. Thirteen family
members and friends from Georgia, Florida, and Washington, D.C.
testified on Jackson's behalf, including his father, wife,
sister, son, daughter, and former employers at Bryant Displays.
This testimony collectively established that Jackson has been a
good husband, sibling, and father; is a trustworthy friend and
has a good heart; has a good reputation in his hometown; was
raised in poverty without consistent adult guidance; has low-
average intelligence (I.Q. of 84); is humble, generous, and
57
helped others; was a nurturing and caring person with children;
was an excellent athlete and good teammate; was polite and
respectful of women; is religious and gave himself to God; and
is a productive and hard worker.
This Court has found death unwarranted in other cases
involving a similar balance of aggravation and mitigation. In
Larkins v. State, 739 So. 2d 90 (Fla. 1999), there were two
aggravators and no statutory mitigation but some nonstatutory
mitigation. The aggravators were prior violent felony, based
upon a prior manslaughter and assault with intent to kill, which
occurred twenty years prior to the murder, and robbery. As
here, neither EHAC nor cold, calculated, and premeditated (CCP)
were found as aggravators.6 Similarly, in Johnson v. State, 720
So. 2d 232 (Fla. 1998), two aggravators, prior violent felony
and burglary/pecuniary gain, were balanced against the
defendant's age of 22 and nonstatutory mitigation that included
a troubled childhood, previous employment, and that Johnson was
respectful to his parents and neighbors. The prior violent
felony aggravator in Johnson, was based on 4 prior violent
felony convictions, a 1989 aggravated assault for shooting at
his brother, a 1989 aggravated battery for shooting a man, and
6 This Court has deemed EHAC and CCP the "most serious
aggravators set out in the statutory scheme," whose absence,while not controlling, is not without relevance toproportionality analysis. Larkins, 739 So. 2d at 95.
58
contemporaneous convictions. as a principal for robbery and
attempted murder of a second victim. Other comparable cases
include Robertson v. State, 699 So. 2d 1343 (Fla. 1997)(felony
murder and EHAC balanced against age (19), drug and alcohol use,
abusive childhood, low intelligence, and mental illness); Terry
v. State, 668 So. 2d 954 (Fla. 1996)(two aggravators, prior
violent felony and felony murder, balanced against emotional
deprivation in adolescence, poverty, good family man); and
Wilson v. State, 493 So. 2d 1019 (Fla. 1986)(two aggravators,
prior violent felony and pecuniary gain, balanced against
nonstatutory mitigation).
When the facts of the present case are compared with other
cases, it is clear that equally culpable defendants have
received sentences of life imprisonment. As discussed above,
the felony probation aggravator, based on a 1992 conviction, is
relatively weak, and the prior violent felony aggravator is not
compelling, as in neither incident was a shot fired or a
person injured. In the pantheon of capital crimes, this case is
neither the most aggravated nor the least mitigated for which
the law has reserved the ultimate penalty of death. This court
should reverse the death penalty and remand for imposition of a
life sentence with no possibility of parole.
The death penalty also violates the requirement of
individualized punishment set forth in Enmund v. Florida, 458
59
U.S. 782, 801 (1982). In Enmund, the defendant drove the
getaway car, and his two colleagues killed the intended robbery
victims. The Supreme Court held death is a disproportionate
penalty "for one who neither took life, attempted to take life,
nor intended to take life." 458 U.S. at 801. Subsequently, in
Tison v. Arizona, 481 U.S. 137, 158 (1987), the Court held
"major participation in the felony committed, combined with
reckless indifference to human life, is sufficient to satisfy
the Enmund culpability requirement."
The Enmund/Tison requirement has not been met here. As
argued in Issue 1, supra, there is no evidence Jackson's
participation went beyond his presence in the house when the
murder occurred. Even if Jackson was a participant in a felony
or attempted felony? that resulted in Pearce's death, there is no
evidence Jackson directly killed Pearce, participated in the
killing, or intended that she be killed. Under such
circumstances, the death penalty is unwarranted. See Jackson v.
State, 575 So. 2d 181 (Fla. 1991)(Emmund not satisfied in
robbery-murder involving two defendants where triggerman not
identified and single gunshot may have been reflexive action to
victim's resistance).
Contamination of the crime scene by individuals entering thehouse and removing items prior to the arrival of the police madeit impossible to determine if the murder was committed during arobbery or attempted robbery.
60
Issue 5
THE TRIAL COURT ERRED IN SENTENCING KIM JACKSON TO
DEATH BECAUSE FLORIDA'S CAPITAL SENTENCING PROCEEDINGSARE UNCONSTITUTIONAL UNDER THE SIXTH AMENDMENT
PURSUANT TO RING V. ARIZONA.
This issue was preserved by Jackson's Motion to Declare
Florida's Capital Sentencing Procedure Unconstitutional under
Ring v. Arizona. SR1:70-84. The standard of review is de novo.
The death penalty was improperly imposed in this case
because Florida's death penalty statute is unconstitutional in
violation of the Sixth Amendment under the principles announced
in Ring v. Arizona, 536 U.S. 584 (2002). Ring extended to the
capital sentencing context the requirement announced in Apprendi
v. New Jersey, 530 U.S. 446 (2000), for a jury determination of
facts relied upon to increase maximum sentences. Section
921.141, Florida Statutes (2009), does not provide for such jury
determinations.
Jackson acknowledges that this Court has adhered to the
position that it is without authority to declare section 921.141
unconstitutional under the Sixth Amendment, even though Ring
presents some constitutional questions about the statute's
continued validity, because the United States Supreme Court
previously upheld Florida's statute on a sixth amendment
challenge. See, e.g., Bottoson v. Moore, 833 So. 2d 693 (Fla.),
61
cert. denied, 537 U.S. 1070 (2002); King v. Moore, 831 So. 2d
143 (Fla.), cert. denied, 537 U.S. 1067 (2002).
Additionally, Jackson is aware that this Court has held
that it is without authority to correct constitutional flaws in
the statute via judicial interpretation and that legislative
action is required. See, e.g., State v. Steele, 921 So. 2d 538
(Fla. 2005). However, this Court continues to grapple with the
problems of attempting to reconcile Florida's death penalty
statute with the constitutional requirements of Ring. See e.g.,
Marshall v. Crosby, 911 So. 2d 1129, 1133-35 (Fla. 2005)
(including footnotes 4 & 5, and cases cited therein); Steele.
At this time, Jackson asks this Court to reconsider its position
in Bottoson and King because Ring represents a major change in
constitutional jurisprudence which would allow this Court to
rule on the constitutionality of Florida's statute.
This Court should re-examine its holding in Bottoson and
King, consider the impact Ring has on Florida's death penalty
scheme, and declare section 921.141 unconstitutional. Jackson's
death sentence should then be reversed and remanded for
imposition of a life sentence.
62
CERTIFICA.TE OF SERVICE
I HEREBY CERTIFY that a true and correct copy was furnished
by electronic transmission, per parties' agreement, to RENE
RANCOUR, Assistant Attorney General, [email protected],
and by U.S. Mail to KIM JACKSON, #135963, Florida State Prison,
7819 NW 228°¹ Street, Raiford, FL 32026, on this date, May 12,
2014.
CERTIFICATE OF FONT SIZE
I HEREBY CERTIFY that, pursuant to FRAP 9.210(a)(2), this
brief was typed in Courier New, 12 point.
NADA M. CAREY
Assistant Public enderFlorida Bar No. 0648825
64
IN THE SUPREME COURT OF FLORIDA
KIM JACKSON,
Appellant,
v. CASE NO. SC13-2090
STATE OF FLORIDA,
Appellee.
APPENDIX TO INITIAL BRIEF OF APPELLANT
Appendix Document
A Sentencing Order
65
FILEDOCT 0 1 2013 IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FORDUVAL COUNTY, FLORIDA
CLERK CIRC COURT
CASE NO.: 16-2008-CF-010726-AXXX-MA
DIVISION: CR-G
STATE OF FLORIDA
V,
KIM JACKSON,Defendant.
SENTENCING ORDER
The Defendant, Kirn Jackson, was tried for the murder of Debra Pearce. The murder
occurred on or between October 15, 2004, and October 18,2004. The guilt phase portion of the trial
commenced on April 16, 2013, wherein the jury returned a verdict on April 18, 2013, finding the
Defendant guilty of First Degree Murder.
The penalty phase commenced on April 26, 2013, at which time both the State and the
Defense presented evidence. During the penalty phase, the State presented the testimony ofBobbie
J. Jennings, Lindsey N. Pearce, Melissa Moore, Agent Bobby Stanley (via telephonic testimony), and
Carol Adeyeye. The State also presented a surveillance videotape of the Defendant committing an
armed robbery in 2005. The Defense presented the testimony of Lequitta Weldon, Walter Jackson,
LaQuinta Jackson, Kenyetta Jackson, Penny Williams, Ridrrione Durr, Dr. Jerry Valente, Stephen
Stafford, Jerome Durr, Annie Scott, Nathan Bernard, Tracy Dyal, Don Meaders, Timothy Bryant,
Aileen Y. Gibbs (via video testimony), and Debra Jackson. Through a special interrogatory, thejury
first determined, unanimouslyand beyond a reasonable doubt, that the Defendant played a significant
role in the homicide ofDebra Pearce, Thereafter, the jury returned a recommendation, by a vote of
eight-to-four, that the Defendant be sentenced to death for the murder of Debra Pearce,
PACE E 0714 OF 11d0
A separate Spenceri hearing was held on June 11, 2013, at which time the Defense was given
an opportunity to present additional evidence in support of mitigation of sentence. During the
Spencer hearing, the Defense presented the testimony of David Douglas, the Defense mitigation
specialist. The State introduced the victim impact statements and testimony of Linda Waddel, the
victim's sister, as well as that of Bobbie Jennings, the victim's mother. Following the Spencer
hearing, each party submitted their memoranda in support of, and in opposition to, imposing the
death penalty as the sentence in this case. The sentencing rnemoranda specifically addressed each
of the aggravating and mitigating circumstances presented to the Court for consideration.
Because the State asked for an instruction during the guilt phase that explained culpability
under a principal theory, the Court delayed sentencing in this case to further explore two additional
legal issues. First, the Court requested that both sides address a potential Enmund/Tison issue and
gave each side the opportunity to provide any supplemental argument and memoranda on that issue.
Additionally, the Court afforded each side the chance to provide their respective positions on
whether, and under what circumstances, the Court can consider applying the aggravating
circumstance that the murder was committed in a heinous, atrocious, and cruel manner, if the
Defendant did not directly cause the victim's death.
In imposing this sentence, the Court has taken into account all of the evidence presented
during the trial, including the guilt and penalty phases, the Spencer hearing, and all sentencing
memoranda submitted by the parties 2 .Based on the evidence presented and the argument ofcounsel,
the Court now finds as follows:
1 Spencer v. State, 615 So, 2d 688 (Fla. 1993).
2 The Court did not order a Presentence Investigation Report. Fla. R. Crim. P. 3.170(a)(courthas discretion, but is not required, to order report except when sentencing first time felony offenders ordefendants under the age of 18); Rose v. Sate, 461 So. 2d 84, 87 (Fla. 1984)("[T]he ordering of apresentence report is discretionary in capital cases....").
2
PACR # 0719 OF 11do
FACTS
At some point during the three-day period ofOctober 16, 17, and 18,2004, Debra Pearce was
murdered in the kitchen ofher own home. No eyewitnesses to the crime have ever been identified.
Her body was discovered on Monday, October 18, 2004, by Mr. Chester Narvell, a concerned
neighbor who had not seen her in a few days. During the three-day period, Mr. Narvell noticed the
victim's automobile was missing from the driveway ofher home and he had not seen the victim. On
October 18, 2004, Mr. Narvell went to check on the victim and found the side gate and the sliding
glass door ofher home were left ajar. Mr. Narvell entered the victim's home and saw her body face
down in the kitchen surrounded by a large pool ofdried blood. He left and went to his home to alert
the Jacksonville Sheriff's Office ("JSO") about the discovery ofthe victim's body. Lawenforcement
authorities arrived shortly after Mr. Narvell's telephone call.
The forensic evidence indicates Debra Pearce was brutally stabbed to death with a five-inch
butcher knife. When her body was discovered, two-thirds of the blade was still lodged in her chest,
with the remaining portion of the blade and handle outside ofher body. The knife transected the
victim's subclavian vein, incised her subclavian artery, and entered her body with such force that it
pierced her right scapula and broke off an area of that bone roughly the size of three-fourth's ofan
inch. The attacker also inflicted another fatal knife wound to her neck where the knife transected
her left jugular vein. In addition to these two injuries, the victirn suffered sixteen separate stab
wounds and numerous bruises and contusions to the rest of her body. The medical examiner
characterized several of these wounds as defensive in nature, including those found on her elbows
and finger. From the number and nature ofthe wounds discovered during the autopsy ofthe victim's
body, it was apparent that a struggle had ensued between the victirn and her attacker.
JSO detectives processed the victim's home for evidence on October 19, 2004. The
3
PAGE # 0716 OF 1149
detectives noticed what appeared to be a bloody fingerprinton the kitchen sink near the final resting
place of the victim's body. The Florida Department of Law Enforcement ("FDLE") tested the
kitchen sink with a blood swab and concluded that the blood matched the victim's DNA profile.
Initial examination of the fingerprint by latent print examiners, however, proved inconclusive as to
the identity of the individual who left the print. The detectives also collected from the victim's calf
a hair that "!aoked out of place" and preserved the hair for testing. As with the fingerprint, FDLE
experts were at first unable to detennine a match to the DNA profile of the hair, except that it did
not belong to the victim. Finally, the detectives recovered a small pocketknife which was found
beneath the victim's body.
In addition to the evidence at the crime scene, JSO detectives were able to recover the
victim's automobile and process it for possible evidence. DNA swabs were taken from the steering
wheel and provided to experts with the FDLE. Additional testing of the steering wheel from the
victim's car revealed two DNA donors: the victim and an unknown male. However, similar to the
fingerprint and hair found in the victim's home, the evidence from the vehicle produced few leads
at the outset.
Over the next two years, FDLE experts continued to analyze tlie evidence found at the crime
scene without much success. In the interim, the Defendant was convicted of Armed Robbery in
Cook County, Georgia on August 16,2006, and sentenced to prison in that state. As a result of his
conviction, the Defendant's DNA profile was placed into a database that produced a "match" to the
DNA profile of the hair found on the victim's calf, From there, FDLE analysts conducted further
testing and analysis and determined that the complete DNA profile from that hair matched
Defendant's known standard DNA profile. Further testing of the DNA from the unknown male
foundon the steering wheel proved inconclusive, butthe FDLE analysts indicated that the Defendant
4
PAGE # 0717 OF 1149
could not be excluded as the second contributor. Subsequent DNA testing of the blood on the small
knife found under the victim also proved inconclusive.
With the DNA match from the hair, experts from both the Federal Bureau of Investigation
Latent Print Unit and the Pinellas County Latent Fingerprint Lab exatnined the fingerprint on the
kitchen sink and compared it to the Defendant's fingerprints. Both experts determined that the
Defendant's known fingerprint matched the latent print left on the kitchen sink and that the print was
made by the Defendant's right ring finger. Furthermore, they testified at trial that this was a blood
transfer fingerprint that was created when the Defendant's finger touched the area of the sink that
already contained the victim's blood, rather than a fingerprint that existed prior to the victim's death
that became visible when the victim's blood landed on the existing print. In short, the Defendant
could not have left the print, according to the experts, at some indeterminate date prior to the attack.3
While the Defendant was incarcerated for the Armed Robbery, JSO detectives traveled to
Georgia to interview him. After providing Miranda warnings to the Defendant and explaining that
they were conducting an investigation into a homicide involving Debra Pearce, the interviewing
detective asked the Defendant ifhe knew her and whether he had ever been inside her home. During
the interview, the Defendant denied knowing the victim and denied ever being in her house. Shortly
thereafter, the Defendant was arrested on the charge of First Degree Murder for the death ofDebra
Pearce.
With no eyewitnesses to the murder, the S tate based its case during the guilt phase of the trial
entirely on the forensic evidence recovered from the scene linking the Defendant to the murder and
his initial denial that he did not know Debra Pearce and had never been in her house. The State
3 At trial, the Defendant testified that he had gotten a ring out of the victim's kitchen sinkgarbage disposal one week prior to her murder. The State offered this testimony to rebut the Defense'sassertion that the Defendant left the fingerprint on the kitchen sink at a time unrelated to the victim'sdeath and that the victim's blood merely exposed an already existing print.
5
PAGE # 0718 OF 1140
sought to convict the Defendant of First Degree Murder solely on a theory ofpremeditation. At the
close of the guilt phase, the jury was instructed only on Premeditated First Degree Murder and was
not given an instruction on Felony Murder.
At trial, the Defense claimed alibi and presented testimony, including from the Defendant,
that he was not present when Debra Pearce was murdered and was, instead, visiting family in Adel,
Georgia, The Defense suggested that the murder was committed by someone else, relying upon the
forensic evidence at the crime scene that consisted of bloody footprints that did not belong to the
Defendant, other fingerprints in the house that were not matched to the Defendant, and the smaller
knife found under the victim's body with the inconclusive DNA test results. There was also
testimony at trial that other neighborhood people frequently congregated at Debra Pearce's home to
purchase and/or use illegal drugs. When Debra Pearce's body was found, her home had been
ransacked and there was additional testimony that other individuals had been in her house after she
was murdered, but before her body was discovered by Mr. Narvell.
Because the Defense argued that someone else committed the crime and focused on the
forensic evidence that did not implicate the Defendant, the State asked for an instruction at trial that
the Defendant could also be guilty ifhe was a principal to the crime, The Court gave the standard
jury instruction on principals that explained that the Defendant could still be found guilty if he
helped another person or persons commit the crime if the Defendant 1) had a conscious intent that
the criminal act be done; and 2) did some act or said some word that was intended to, and did,
encourage, incite, cause, advise, or assist, another to commit the crime. The jury found the
Defendant guilty of First Degree Premeditated Murder as charged by the Indictment.
During the penalty phase, the Court further instructed the jury that before considering any
aggravating or mitigating factors for imposition of the death penalty, they must first find
o
PAGE # 0719 OF 1149
"unanimously and beyond a reasonable doubt that the Defendant played a significant role in the
homicide of Debra Pearce" and required the jury to make this finding in a special interrogatory
verdict form. Thejury in this case returned a verdict wherein they specifically made this finding and,
thereafter, recornmended by a vote of eight to four that the Defendant should receive the death
penalty for the tnurder of Debra Pearce.
AGGRAVATING CIRCUMSTANCES
The State proposed three aggravating circumstances: (I) the Defendant was previously
convicted of another capital felony or felony involving the use or threat of violence to the person
(Robbery, Armed Robbery, Aggravated Assatilt); (2) the Defendant was under a sentence of
imprisonmentat the time he comtnitted the capital felony (felony probation forAggravated Assault);
and (3) the capital felony was especially heinous, atrocious, and cruel. During the guilt and penalty
phases, the State proved beyond a reasonable doubt the existence of all three aggravating
circumstances.
1. The Defendant was previously convicted of another capital felony or a felonyinvolving the use or threat of violence to the person. § 921.141(5)(b), Fla. Stat.
A prior violent felony is defined as a "felony involving the use or threat ofviolence." Pham
v. State, 70 So, 3d 485, 495 (Fla. 2011). "Whether a crime constitutes a prior violent felony is
determined by the surrounding facts and circumstances of the prior crime." Id. "[T]he finding of
a prior violent felony conviction aggravator attaches to life-threatening crimes in which the
perpetrator comes in direct contact with a human victim." Williams v. State, 967 So. 2d 735, 762
(Fla.2007). Furthermore, a violent felony that is comtnitted after the tnurder, but before the penalty
phase, may be used as an aggravating circumstance if the defendant has been convicted prior to
sentencing. Elledge v. State, 346 So. 2d 998, 1001 (Fla. 1977).
By stipulation, the State presented evidence at the penaltyphase that the Defendant has three
7
D A Cli' R D'770 OF 1140
prior felony convictions: Robbery in Cook County, Georgia, on April 20,1988; Aggravated Assault
in Cook County, Georgia, on February 17, 1992; and Armed Robbery in Cook County, Georgia, on
August 16, 2006. Although the 2006 conviction was based upon a crime that occurred after the
murder of Debra Pearce, and the conviction was entered against the Defendant thereafter, as well,
the conviction occurred prior to the penalty phase and sentencing in this case and thus qualifies as
a prior felony conviction for purposes of this aggravating circumstance. See id.
In further supportofthis aggravating circumstance, the State presented the testimony ofMs.
Melissa Moore, the victim of the Armed Robbery in Cook County, Georgia, that resulted in the
Defendant's 2006 conviction. Ms. Moore testified that she worked as the front-desk clerk at the
Days Inn Hotel in Adel, Georgia on May 23, 2005. She testified that on that date, the Defendant
brandished a firearm and threatened to use it against her ifshe did not give him the money located
at the front desk. The State also entered into evidence the videotaped surveillance footage obtained
from the Days Inn Hotel that captured the Defendant robbingMs. Moore at gunpoint. The videotape
clearly depicted the Defendant entering the lobby, pointing a gun at Ms. Moore, and deliberately and
calmly demanding money.
The State also presented the telephonic testimony offorrner Agent Bobby Stanley, the victim
of the Aggravated Assault in Cook County, Georgia, that was the basis of the Defendant's 1992
conviction. Mr. Stanley testified that at the time ofthe Aggravated Assault, he worked undercover
for the Georgia Bureau of Investigations. He also testified that on September 21, 1991, the
Defendant brandished a gun to Mr. Stanley during a narcotics transaction and then fled the scene.
Convictions under Florida law for Aggravated Assault and Armed Robbery typically qualify
as a prior violent felony sufficient to support the finding ofthis aggravating circumstance. Gunsby
v. State, 574 So. 2d 1085, 1090 (Fla. 1991)(a previous conviction ofaggravated assault constitutes
8
PAGE # 0721 OF 1149
a prior violent felony to satisfy said aggravating circumstance); Daugherty v. State, 533 So.2d 287,
289 (Fla. 1988) (holding that the aggravating circumstance of prior violent felony is met where a -
defendant has previous convictions for armed robbery and aggravated assault). Although the
Defendant's prior felony convictions for Aggravated Assault in 1992 and Anned Robbery in 2006
are all from the state of Georgia, the stipulation, the testimony ofMs. Moore and Mr. Stanley, and
the videotape surveillance from the Days Inn robbery prove beyond all reasonable doubt the
existence of this aggravating circumstance without the need to compare the elements for these two
crirnes under Georgia and Florida law. Clearly, the Defendant's 2006 conviction for Armed Robbery
and 1992 conviction for Aggravated Assault involved the use or threat ofserious violence to another
human being. In each case, the State provided independent corroborating evidence that the
Defendant used a handgun to threaten the life of the victim. The videotape from Armed Robbery
at the Days Inn was particularly compelling as there is no question that the Defendant perpetrated
the crime.
For whatever reason, rnost likely the age of the crime, the State was unable to provide any
specific details about the Defendant's 1988 Robbery conviction. In Florida, Robbery is also typically
a "felony involving the use or threat of violence." Simmons v. State, 419 So. 2d 316, 319 (Fla.
1982). However, because the 1988 conviction is also under Georgia law, the Court will not
speculate whether such a conviction under that state's laws would automatically include the use or
threat of violence. Accordingly, the 1988 conviction does not form any part of the basis of the
Court's finding that the State has proven this aggravating circumstance beyond a reasonable doubt,
nor the weight to assign that aggravating factor.
As to the weight given to this aggravating circumstance in this case, the Court recognizes that
the Florida Supreme Court has traditionally viewed it as among the weightiest aggravating factors
9
DA C.F # n'790 nr 11an
set forth under Chauter 948. Nodges v. State, 55 So. 3d 515, 542 (Fla. 2010) ("Qualitatively, prior
violent felony and HAC are among the weightiest aggravators set out in the statutory sentencing
scheme."). The Florida Supreme Court has found that this aggravating circumstance, standing alone,
carries sufficient weight to support the death penalty. Rodgers v. State, 948 So. 2d 655 (Fla. 2006);
LaMarca v. State, 785 So.2d 1209 (Fla.2001); Ferrell v. State, 680 So. 2d 390 (Fla. 1996); Duncan
v. State, 619 So. 2d 279 (Fla. 1993). Although multiple prior violent felony convictions can support
a finding ofonly one "prior violent felony" aggravating circumstance, the existence ofmore than one
prior violent felony conviction will justify giving this aggravating circumstance greater weight.
Bright v. State, 90 So, 3d 249, 260-61 (Fla. 2012) (citing Tanzi v. State, 964 So. 2d 106, 117 (Fla.
2007)). The age ofa prior violent felony conviction may also have an effect on the weight that may
be assigned. See Larkins v. State, 739 So. 2d 90, 93-95 (Fla. 1999), and cases cited therein.
The Court fmds it appropriate to assign great weight to this aggravating circumstance
given that the Defendant committed two prior violent felonies, the timing of both prior
convictions in relation to the murder ofDebra Pearce, and the level of violence threatened by
the Defendant in each act. Although the 1992 conviction for Aggravated Assault is now over
twenty years old, D¢bra Pearce was rnurdered in 2004, only twelve years after this previous felony
conviction. The 2006 conviction for Armed Robbery is based on a 2005 criminal act that occurred
onlymonths after the Defendantmurdered Debra Pearce. Allowing for the time the Defendant spent
in jail after the 1992 conviction, and the fact that the Defendant has been incarcerated since his 2005
arrest, the Court cannot conclude that the Defendant led a "comparatively crime-free life" between
1992 and his arrest in this case. See id. at 95.
Moreover, both prior violent acts and resulting felony convictions illustrate the Defendant's
penchant for violence as a means to further his criminal ends. The videotape of the 2005 Days Inn
10
PA CR H 8723 OF 11d4
robbery shows an individual who, with all deliberate intent and absolutely no hesitation, walked into
the lobby of a hotel, immediately pointed a handgun at an innocent victim, and demanded money.
Former Agent Stanley, likewise, provided the description of an individual involved in a narcotics
transaction that was willing to brandish a handgun despite the risks presented by such an act. The
manner in which the Defendant committed each prior violent felony, and the timing of both
convictions in relation to the Defendant's decision to murder Debra Pearce, more than justifies
giving this aggravating circumstance great weight,
2. The capital felony was committed by a person previously convicted of a felony andunder sentence of imprisonment, or placed on community control, or on felonyprobation. § 921.141(5)(a), Fla. S tat.
This aggravating circumstance includes persons incarcerated under a felony order of
probation and persons who are under sentence for a specific or indeterminate term ofyears, as well
as persons who have been placed on parole. Merck v. State, 763 So. 2d 295, 299 (Fla. 2000)(noting
that, in 1996, the Florida Legislature amended section 921.141(5)(a) to include persons under a
sentence offelony probation). See Martin v. State, 107 So. 3d 281, 322 (Fla. 2012), reh 'g denied,
(Feb. 1, 2013). It is not required that there be a "nexus" between the fact that the defendant is on
probation and the murder. Caylor v. State, 78 So. 3d 482, 496-97 (Fla. 201 1). Similarly, the statute
does-not require that the underlying probationary sentence relate to a violent act for this aggravator
to apply. Blake v. State, 972 So.2d 839, 847(Fla.2007). Although the probation may be based on
a sentence for a violent felony, this aggravating circumstance does not merge with the prior violent
felony conviction aggravating circumstance, nor does use of both aggravating circumstances
constitute "doubling," See Waterhouse v. State, 429 So, 2d 301, 306-07 (Fla, 1983) (citations
omitted), overruled on other grounds, State v. Owen,696 So. 2d 715,719 (Fla. 1997).
In the instant case, as discussed above, the State and the Defense stipulated that at the time
11
PAGE # 0724 OF 1149
of the commission of the capital felony, the Defendant was on felony probation for his 1992
conviction for Aggravated Assault in Cook County, Georgia. This stipulation proves beyond all
reasonable doubt the existence of this aggravating circumstance.
The Court also finds that it is appropriate to give great weight to this aggravating
circumstance. Although violence is not required for the aggravator to apply, the fact that the
Defendant was on probation for a violent act certainly enhances the weight it should be given. See
Blake, 972 So. 2d at 847 (competent and substantial evidence supported giving this aggravator only
"some weight" where the felony probation was for a non-violent driving offense). The fact that the
Defendant committed this murder while under court supervision for a prior violent felony indicates -
a determined unwillingness on his part to abide by the law, even when subject to court oversight and
supervision.
3. The capital felony was especially heinous, atrocious, or cruel. § 921.141(5)(h),Fla. Stat.
The heinous, atrocious, or cruei aggravator (HAC) has also been held to be one ofthe most
weighty aggravators. Offord v. State, 959 So. 2d 187, 191 (Fla. 2007) ("HAC is a weighty
aggravator that has been described by this Court as one of the most serious in the statutory .
sentencing scheme.") (citing LarMn v. State, 739 So. 2d 90, 95 (Fla. 1999)); Sireci v. Moore, 825
So. 2d 882, 887 (Fla.2002) (noting that prior violent felony conviction and HAC are two ofthe most
weighty aggravators in Florida's sentencing scheme). To qualify for the heinous, atrocious, or cruel
aggravator, "the crime must be both conscienceless or pitiless and unnecessarily torturous to the
victim." Hertz v. State, 803 So, 2d 629, 651 (Fla. 2001) (citation omitted). This aggravating
circumstance "focuses on the means and rnanner in which the death is inflicted and the immediate
circumstances surrounding the death, ... where a victim experiences the torturous anxiety and fear
of impending death." Allred v. State, 55 So. 3d 1267, 1279-80 (Fla. 2010) (citations omitted).
12
PAGE # 0725 OF 1149
HAC isproven in cases involving multiple stab wounds ifthe victim was alive and conscious
when the wounds were inflicted. Aguirre-Jarquin v. State, 9 So. 3d 593, 608 (Fla. 2009). The
slitting ofa victim's neck and further infliction of trauma upon the victim has been held to be HAC.
Card v. State, 803 So. 2d 613, 624-25 (Fla. 200 l). See Zommer v. State, 31 So, 3d 733, 747-48 (Fla.
2010) (finding that the act of killing a victim by slicing her throat with a knife is in itself heinous,
atrocious, and cruel, provided the victim is conscious at the time), ifdefensive wounds exist on the
victim's body, it may be assumed that the victim was alive during the attack, unless the evidence
demonstrates otherwise. However, "the lack ofdefensive wotmds on the body ofthe victim has not
precluded [the Florida Suprerne] Court from holding the HAC aggravator applicable." Id. at 747.
As a threshold matter, the Court must first determine whether the HAC aggravator can be
applïed in this case if there is a possibility that the Defendant did not directly catise the victim's
death, even ifthe manner in which Debra Pearce was murdered may otherwise qualify as HAC. This
issue must be addressed at the outset because the State requested, and received, an instruction on the
Defendant's culpability ifhe acted as a principal. In general, the HAC aggravator may not be applied
vicariously to a defendant for the acts ofhis or her co-defendant. See Perez v. State, 919 So. 2d 347,
380 (Fla. 2005)(reversing the application ofthe HAC aggravator where the evidence demonstrated
a "significantly higher level of culpability" on the part of co-defendants, as compared to the
defendant, particularly because the evidence revealed the defendant did not know the victim would
be killed during the course of the felony murder or the manner in which she would be killed);
Williams v. State, 622 So. 2d 456, 463 (Fla. 1993) (citing Omelus v. State, 584 So. 2d 563 (Fla.
1991)) (holding that "[HAC] cannot be applied vicariously, absent a showing by the State that the
defendant directed or knew how the victim would be killed"); Copeland v. State, 457 So. 2d 1012,
1019(Fla. 1984). However, the HAC aggravator may be applied "to defendants who did not directly
13
PA CR E A7'M OW 11do
cause the victim's death where the defendant was particularly physically involved in the events
leading up to the victim's murder." Cole v. State, 36 So. 3d 597, 608 (Fla. 2010).
In this case, the Court has no trouble finding that the Defendant was "particularly physically
involved" in the murder ofDebra Pearce. The Defendant testified that he wasn't present when the
crime occurred. Clearly the jury rejected the Defendant's claim ofalibi when it found him guilty of
Premeditated First Degree Murder. With the jury's rejection ofthe Defendant's alibi claims, and no
testimony from the Defendant, or anyone else, that specifically identified anyone other than the
Defendant who could have done the actual killing, the overwhelming conclusion to reach is that the
Defendant directly caused the victim's death.
However, even if there was an unknown assailant that did the actual killing, the forensic
evidence linking the Defendant to the crime scene supports the determination that the Defendant was
"particularly physically involved" in killing Debra Pearce. The Defendant's fingerprint left in the
victim's blood next to the kitchen sink not only identified the Defendant as a suspect, but also
indicated that he was present while the victim's blood was still fresh and had not dried up. The
imprint was, therefore, made close to the time that the victim struggled with her attacker. Also, a
hair expert testified during the guilt phase that the hair found on the victim's calf matching the
Defendant's DNA profile was a pulled hair containing the root, not one that was cut or clipped with
a sharp instrument. As such, this evidence was consistent with a finding that the Defendant engaged
in some type of struggle with the victim, again, at or near the time of her death.
The Court has considered the decision in Perez v. State, supra, but finds the facts
distinguishable to those in the instant case. In Perez, the Florida Supreme Court disapproved the
application of the HAC aggravator despite overwhelming evidence showing that the defendant was
involved in the preparation for the robbery, in covering up the murder, and in pawning the victim's
14
DA CF H ß777 AR 1140
belongings. Perez, 919 So. 2d at 381. There was evidence in Perez that the defendant left a bloody
shoe print next to the victim's body, his own testimony placed him at the crime scene, and he
admitted disposing ofhis shoes because theyhad blood on them. Id. at 370. Additionally, there was
evidence that the defendant cut the victim's phone lines and helped dispose of the murder weapon
after the crime. Id. However, the only eyewitness testimony presented at trial was the defendant's
recorded statement where he denied striking the victim and consistently stated that his co-defendant
committed the murder of his own accord. Id. at 381. On this record, the Florida Supreme Court
found that there was no evidence to establish that the defendant directed or otherwise knew that the
victim would be killed or that he would be killed in the manner in which it was carried out. Id.
As in the Perez case, the only eyewitness testimony in the instant case was from the
Defendant himself, but the similarities end there. Unlike the defendant in Perez, the Defendant
testified simply that he was not present at the victim's home at the time she was murdered and was
not involved. His trial testimony was consistent with his recorded statement, at least to the extent
that he denied being present when Debra Pearce was killed. As such, the jury was presented with
two stark choices: either the Defendant was not present at the crime scene and not involved, or he
was the only discernible, identifiable individual present at the crime scene. The jury flatly rejected
the Defendant's version ofevents and the Court finds that the Defendant was particularlyphysically
involved in Debra Pearce's murder and can lawfullyapplythe HAC aggravator, provided the manner
of death qualifies. See Cole, 36 So, 3d at 608.
The testimony in both the guilt and penalty phases ofthis case proves beyond all reasonable
doubt that the manner in which Debra Pearce was inurdered qualifies as HAC. During the guilt
phase, Dr. J. Giles, the Chief Medical Examiner for Duval County in 2004, testified that he
conducted the autopsy ofthe victim on October 19 and20, 2004, and prepared a report detailing his
i 3
PAGE # 0728 OF 1149
findings. Dr. Giles testified that both the victim'sjugular vein in her neck, as well as her subclavian
vein and artery in her chest, were slit in half. Dr. Giles could not render an opinion as to which
wound occurred first, but either injury could have caused the victim's death. Additionally, Dr. Giles
testified that two-thirds of the five-inch blade of the knife was still lodged inside the victim's chest
when her body was discovered. Furthennore, the knife entered the front chest ofthe victim's body
with such force that it pierced her right scapula and son tissue and broke three-fourth's of an inch
of that bone which is located on the back side ofher upper body. Dr. Giles opined that the victim's
cause of death was hypoglycemia shock; in other words, she died because she bled to death. The
manner of death was homicide.
-In addition to the two injuries described above, Dr. Giles described the extreme nature ofthe
sixteen stab wounds suffered by the victim, in addition to the bruises and contusions found over the
rest ofher body. Dr. Giles testified that the victim sustained stab wounds, incisions, and lacerations
to her face, specifically to her forehead, chin, len cheek, and ears. Dr. Giles explained that one
particular wound on the victim's elbow and another deep cut across the victim's ring finger were
defensive wounds indicating that the victim was likely alive, conscious, and aware ofher impending
demise while the Defendant attacked her with a knife, See Aguirre-Jarquin, 9 So. 3d at 608;
Zommer, 31 So. 3d at 747-48. Finally, Dr. Giles testified that a struggle ensued between the victim
and the Defendant, as indicatedby the following two injuries: the victim sustained blunt force trauma
to her head, one blow to her skull which reached down to the bone; and an abrasion near her neck.
These two injuries most certainly indicate the victim was alive and conscious during the attack.
The Court has also given great weight to this aggravating circumstance in determining
the appropriate sentence to be imposed. The evidence presented at trial established that Debra
Pearce's assailant repeatedly and brutally stabbed her with a butcher knife containing a five-inch
16
D A CF 41 ß"700 AU 11AQ
long blade. Stab by stab, blow by blow, the Defendant mercilessly attacked the head and body of
Debra Pearce and inflicted not one, but two fatal hiows to her neck and chest. Undoubtedly, Debra
Pearce was aware ofher impending death duringthe Defendant's ruthless attack, given the defensive
wounds on her arms and hands. Finally, the Defendant left the knife with approximately two-thirds
of the blade still lodged in Debra Pearce's chest while she bled to death, to further illustrate the
"conscience!ess or pitiless" nature of his crime.
MITiGATING CIRCUMSTANCES
The Defense proposed one statutory mitigating circumstance: "The existence of any other
factors in the Defendant's background that would mitigate against the imposition of the death
penalty." § 921.141(6)(h), Fla. Stat. The Court allowed the Defense to present any and all evidence
pertaining to the Defendant's background, life, and character that might provide mitigation on his
behalfand instracted thejury that a mitigating circumstance can include anything in the Defendant's
character, background, or life, or any circumstance of the offense that reasonably may indicate that
the death penalty is not an appropriate sentence in this case. Following the Spencer hearing, the
Defendant submitted a memorandum iternizing each and every aspect ofhis background, character,
or life that he contended should mitigate against the imposition ofthe death penalty.
The Court has analyzed each item submitted by the Defendant to support a life sentence and
the Court has not assigned any less weight to an item simply because it was submitted as a mitigating
factor under §921.141(6)(h), Fla. Stat. In analyzing each enumerated item, the Court found it
appropriate to group together similar mitigating circumstances for purposes ofclarity, but has also
identified the number assigned to a given item in the Defendant's .memorandum for ease of
reference.
17
PAGE # 0730 OF 1149
I. The Defendant is a good father and husband, and shares the love of his family.
1. The Defendant is a good father to his daughter.
Debra Jackson, the Defendant's wife, testified that the Defendant is a good father. The
photographs presentedduring thepenaltyphase throughDebra Jackson's testimonydemonstrate that
the Defendant shared many loving memories with his daughter, Kenyetta Jackson. The Defendant's
daughter also testified that her father has had a positive effect on her life. Ms. Jackson stated that
when her father was in town, he would always visit her, and he would take her to Adel, Georgia, to
visit family. The Court finds that this mitigating circumstancewas proven and has been given
nioderate weight in determining the appropriate sentence to be imposed in this case.
2, 3, 4. The Defendant encouraged his daughter to study hard, to go to college in orderto make something of herself, and to grow beyond Nashville, GA.
Kenyetta Jackson testified that in 2004, she showed her father her middle school report card.
She stated her father used to give her incentives to do well in school by rewarding her for receiving
good grades in school. She further testified that her father always encouraged her to stay in school,
to graduate from college, and to get a good job. At the time of her testimony, Ms. Jackson was a
junior at Savannah State University pursuing a degree in Biology. The Court finds that these
mitigating circumstances were proven and has given some weight to each in determining the
appropriate sentence to be imposed in this case.
5. Defendant is involved in his daughter's life and taught her right from wrong.
Kenyetta Jackson testified that her father has always encouraged her to do the right thing,
even after he became incarcerated He has remained involved in her life despite being incarcerated,
as he writes her letters and consistently keeps in contact with her, The Court finds that this
mitigating circumstance was proven and has been given some weight in determining the
appropriate sentence to be imposed in this case.
18 .
6. The Defendant is religious/faith based and guided his daughter spiritually.
No testimony was presented in support of this mitigating circumstance as far as the
Defendant guiding his daughter spiritually. The Court finds that this mitigating circumstance
was not proven and has been given no weight in determining the appropriate sentence to be
imposed in this case.
7. The Defendant's daughter intends to continue to maintain a relationship withher father.
Kenyetta Jackson testified that she will continue to stay in contact with her father while he
is in prison. She stated she has stayed in contact with her father since he became incarcerated and
since she began college. She writes to him and also visits him in prison when she has the chance.
The Defendant writes her letters back in response. The Court finds that this mitigating
circumstance was proven and has been given some weight in determining the appropriate
sentence to be imposed in this case.
8. The Defendant loves his daughter and his daughter loves him.
Kenyetta Jackson testified that she has a good relationship with her father and she loves him.
The photographs presented during the penalty phase through the Defendant's wife, Debra Jackson,
demonstrate a loving family relationship between the Defendant and his daughter. The evidence
presented during the penaltyphase through I(enyetta Jackson demonstrates that the Defendant and
his daughter maintain contact with one another. The Court finds that this mitigating
circumstance was proven and has been given moderate weight in determining the appropriate
sentence to be imposed in this case.
9, 10, 12. The Defendant assumed the role of stepfather and went beyond legalresponsibilities, was involved in raising his stepson, and is a good fatherto his stepson.
TimothyBryant, the Defendant's stepson, grew up with the Defendant in his life since he was
19
PAGE # 0732 OF 1149
twelve or thirteen years old. He referred to the Defendant as his father throughout his penalty phase
testimony, even though the Defendant is his stepfather. .Mr. Bryant testified that the Defendant
views him as his own biological son and that the Defendantwas genuinelycompassionate about him
growing up. He stated that he and the Defendant have a "pretty close relationship." Mr. Bryant
testi.fied that the Defendant supported him while he was growing up, and supported his decisions
even if others did not agree with his decisions. Mr. Bryant additionally testified the Defendant has
been a good father to him. Debra Jackson testified that the Defendantand her son are very close and
that the Defendant has been an excellent father to her son. Mr. Bryant is currently serving in the
military and stationed in Washington D.C. CertainlyMr. Bryant's maturity and bright future are the
result, at least in part, of the Defendant's involvement in this life during Mr. Bryant's formative
years. The Court finds that these three mitigating circumstances were proven and have been
given moderate weight in determining the appropriate sentence to be imposed in this case.
11. The Defendant is a good role model to his stepson.
Mr. Bryant testified that the Defendant had a positive effect on his life, more so than his
biological father. Mr. Bryant stated that the Defendant always encouraged him to make the right
decisions. Mr. Bryant further stated his stepfather aiways.meant the best for him and he meant well
in all he did for him growing up. The Court finds this mitigatingcircumstance was proven and
has been given some weight in determining the appropriatesentence to be imposed in this case.
14, 15, 16, 17. The Defendant taught his stepson the value of hard work; theDefendant taught his stepson to have a good work ethie; theDefendant and his stepson worked side by side for more than ayear; the Defendant encouraged his stepson to study hard.
Although Mr. Bryant may not.have specifically testified about each of these mitigating
circumstares, the Court was able to determine collectively from his testimony that the Defendant
had a positive effect on Mr. Bryant's values and work ethic. Mr. Bryant grew to understand the
20
Defendant and stated that the Defendant meant well in everythinghe &1=dalwaysencouragedhim.
The Court finds that these mitigating circumstances were proven and has given each some
weight in determining the appropriate sentence to be imposed in this case.
18. The Defendant was a good athlete and instructed his stepson athletically.
Mr. Bryant testified he was not interested in sports like the Defendant was, but that his
stepfather always encouraged him to play some type of sport. Mr. Bryant eventually played
basketball in high school. He stated the Defendant attended some of his garnes and "he was
supportive as he could be" in cheering him on at his games. The Court finds that this mitigating
circumstance was proven and has been given slight weight in determining the appropriate
sentence to be imposed in this case.
19. The Defendant encouraged his stepson to join the military and providedemotional encouragement.
As to the Defendant directly encouraging his stepson to join the military, no testimony was
presented in support of this mitigating circumstance. As such, as to first portion of this mitigating
circumstance, the Court finds it was not proven and has been given no weight in determining the
appropriate sentence to be imposed in this case.
However, Mr. Bryant testified that the Defendant encouragedhim to always do the right thing
and that the Defendant always supported him when he wanted to make decisions even if others
"looked down on" his decisions. Again, the Court has no trouble concluding that the Defendant's
mi!!tary service is a result, in part, to the Defendant's involvement in his life. As such, as to the
latter portion of this mitigating circumstance, the Court finds it was proven and has been given
some weight in determining the appropriate sentence to be imposed in this case.
20. The Defendant loves his stepson and his stepson loves the Defendant.
Mr. Bryant testified that he s till loves his stepfather, even though he is incarcerated and has
21
been since 2005. The photographs presented during the penalty phase through the Defendant's wife
demonstrate a loving family relationship between the Defendant and his stepson. The Court f"mds
that this mitigating circumstance was proven and has been given moderate weight in
determining the appropriate sentence to be imposed in this case.
2L The Defendant's stepson has a relationship with the Defendant andcommunicates through his mother.
Mr. Bryant testißed that he is in contact with his stepfather since he became incarcerated in
2005. Mr. Bryant stated he has not written the Defendant letters because he prefers verbal
communication as opposed to written communication. As such, when he visits Florida from
Washington, D.C., he either speaks with the Defendant on the telephone through his mother, or goes
to visit the Defendant injail. The Court finds that this mitigating circumstance was proven and
has been given slight weight in determining the appropriate sentence to be imposed in this
case.
22. The Defendant's stepson intends to continue a relationship with the Defendant.
Mr. Bryant testified he intends to continue to communicatewith his stepfather byvisiting him
in prison and through the telephone. .Mr. Bryant stated that when he has the opportunity to travel to
Florida, he will visit the Defendant in prison. The Court fhids that this mitigating circumstance
was proven and has been given slight weight in determining the appropriate sentence to be
imposed in this case.
63. The Defendant is a good husband, friend, and companion.
Debra Jackson is the Defendant's wife; they married in 2000. She testified that, throughout
the years, they have experienced only minor, small disagreements in their relationship. She stated
.the Defendant has been a good husband to her, as well as a good father and grandfather to their
family. Timothy Bryant, the Defendant's stepson, testified that the Defendant was a good husband
22
PA CE R A7M OR 1140
to his mother. The Court finds that this mitigating circumstance was proven and has been
given moderate weight in determining the appropriate sentence to be imposed in this case.
65. The Defendant's wife will continue to foster a relationship and visit him whilehe is incarcerated.
Debra Jackson testified that she will stand by the Defendant regardless of the jury's
recommendation of punishment. Since the Defendant became incarcerated in May of 2005 in
Georgia, as well as in the Duval County Jail for the instant capital crime, she has continuously
visited him, writtenhim letters, and accepted his telephone calls. She will continue to stay in contact
with him while he is incarcerated, whether it be for life or to eventually receive the death penalty.
The Court finds that this mitigating circumstance was proven and has been given someweight
in determining the appropriate sentertce to be imposed in this case.
13, 64. The Defendant was a good provider to his stepson and a good provider to thefamily.
Defendant's wife, Debra Jackson, testified that the Defendant provided for their family, as
well as his family in Adel, Georgia. Timothy Bryant testified that the Defendant provided for hirn
as ifhe was the Defendant's biological child. Kenyetta Jackson testified that her father was a good
father to her while she grew up. The Court finds that these two mitigating circumstances were
proven and each has been given some weight in determining the appropriate sentence to be
imposed in this case.
II. The Defendant is a good sibling and son, and shares the love ofhis relatives in Georgia.
23. The Defendant assumed the role of protector and role model of his youngersister.
LaQuinta Jackson, one ofthe Defendant's half-sisters, testified that the Defendantwas a good
infinence on her growing up. Penny Williams, the Defendant's other half-sister, testified that the
Defendant was always very protective of her growing up. She stated that when she used to watch
23
»Ace a am nu t uo
the Defendant play sports, he always told her to "stay right in that area [ofthe recreational park] for
him to see me," indicating the Defendant was concerned for Ms. Williams' safety. The Court finds
that this mitigating circµmstance was proven and has been given slight weight in determining
the appropriate sentence to be imposed in this case.
24. The Defendant was a good influence on his sister.
Ms. Jackson testified that the Defendant was a good influence on her growing up; he never
led her down the wrong path and he was never a bad influence on her. Ms. Williams testified that
the Defendant was a positive influence on her growing up. The Court finds that this mitigating
circumstance was proven and has been given slight weight in determining the appropriate
sentence to be imposed in this case.
25. The Defendant encouraged his sister through life's difficulties as she grew up.
Ms. Jackson testified that the Defendant encouraged her to do positive things such as stay
in school, not get involved with the wrong people, and make good life choices. Ms. Williams spent
a lot oftime with the Defendant growing up and he taught her how to play sports. The Court finds
that this mitigating circumstance was proven and has been given slight weight in determining
the appropriate sentence to be imposed in this case.
26. There is mutual love and respect between the Defendant and his sister.
Ms. Jackson testified that although the Defendant has been incarcerated, she has been in
contact with him and she loves and respects him. Ms. Williams testified that even though the
Defendant is incarcerated, she still loves him a lot and he is still an important person in her life. The
Court finds that this mitigating circumstance was proven and has been given slight weight in
determining the appropriate sentence to be imposed in this case.
24
D A CF # A7'27 AF 11AO
27. Defendant's sister will maintain a relationship with him while he isincarcerated.
Ms. Jackson testified that she has written to the Defendant since he has been incarcerated.
She stated she will make a better effort to contact the Defendant and maintain a relationship with him
while he is in prison. Ms. Williams has maintained contact with the Defendant since 2005 when he
became incarcerated; she has visited him in jail and he has written her letters and called her on the
telephone. Ms. Williams testified that she will continue to stay in contact with the Defendant. She
stated that when she has the chance, she will visit the Defendant in prison and she will continue to
write him letters while he is incarcerated. The Court finds that this mitigating circumstance was
proven and has been given slight weight in determining the appropriate sentence to be imposed
in this case.
34. The Defendant is a good son and good to his father as an adult.
Although Mr. Jackson did not specifically state such during his testimony, the Court
discerned that the Defendant has been a good son to his father while the Defendant has not been
incarcerated, as evidenced by testimonythat the Defendant oftenvisited his familyin Adel, Georgia,
even when he lived in Florida. The Court finds that this mitigating circumstance was proven
and has been given slight weight in determining the appropriate sentence to be imposed in this
case.
35. The Defendant is respectful and polite to his father.
Again, Mr. Jackson may not have directly stated this about his son, but the Court has no
trouble concluding from his testimony that the Defendant loves and respects his father and has acted
towards him in a polite manner. The Court finds that this mitigating circumstance was proven
and has been given slight weightin determining the appropriate sentence to be imposed in this
case.
25
D A DE ¿$ En'7'lQ AU 111 AG
36. The Defendant has a good relationship with his father.
Mr. Jackson testified that he and the Defendant have a good relationship. The Court f'mds
that this mitigating circumstance was proven and has been given slight weight in determining
the appropriate sentence to be imposed in this case.
37. The Defendant's father will continue to foster their relationship while theDefendant is incarcerated.
Walter Jackson testified that he wants to be in the Defendant's life. He has written the
Defendant letters and visited him in Georgia while the Defendant was incarcerated in that state. Mr.
Jackson stated he will continue to write the Defendant letters every chance he can, and continue to
visit him in prison wheneverhe possibly can. The Court f'mds that this mitigating circumstance
was proven and has been given slight weight in determining the appropriate sentence to be
imposed in this case.
38. The Defendant visited Adel, GA often to see his father, family, and friends.
KenyettaJackson, the Defendant'sdaughter, testified that her father used to pick her up from
Nashville, Georgia, and take her to Adel, Georgia, to visit family menibers. Debra Jackson testified
. that the Defendant always had a good relationship withhis family, but particularlyhis sisters, father,
and his grandchildren. Ms. Jackson stated that the Defendant attended family functions in Adel,
Georgiaveryoften. She further testified about five familyphotographs depicting the Defendant with
. his family in Adel, Georgia, on numerous occasions throughout the years. During the guilt phase
of the trial, several of the Defendant's family members, as well as Debra Jackson, testified that the
Defendant always made an effort to "come home" to Adel on his birthday or the weekend following
his birthday, to visit with family rnembers and relatives.
Ridmone Durr testified that when he drove semi-trucks and drove through Jacksonville, he
. used to give the Defendant a ride to Adel, Georgia, so the Defendant could see his friends and
26
PAGF. # 0739 OF 1149
family. Mr. Durr stated that the Defendant also played softball with his friends in Adel on the
weekends. During this time, the Defendant stayed and visited with his father when he visited home.
The Court finds that this mitigating circumstance was proven and has been given slight weight
in determining the appropriate sentence to be imposed in this case.
45. The Defendant did his best to support his family in a very poor town and wasactive in his church.
Laquitta Weldon testified that, from the way the Defendant appeared to her while coaching
her in softball, it seemed like the Defendant grew up attending churçh. She testified that the
Defendant and his wife attended church service with her in the same church in Georgia. However,.
the Defendant presented no testirnony demonstrating that he supported his family (outside of his
spouse, daughter, and stepson). Therefore, the Court finds that this mitigating circumstance as
to the Defendant's church attendance was proven, but was not proven as to providing support
to his family, and has been given slight weight in determining the appropriate sentence to be
imposed in this case.
III. The Defendant experienced a difficult childhood and upbringing.
28, 29, 30. The Defendant's mother worked long hours to support the family andtherefore was not home as he grew; The Defendant's mother passedaway; The passing of the Defendant's mother was hard on him.
Although no specific testimony was presented in support of these three mitigating
circumstances, the Court has no trouble finding, in light of the testimony that the Defendant's
grandfather raised-the Defendant and his siblings for much of the Defendant's childhood, that the
Defendant grew up without the consistent presence of his mother. Furthermore, there was no
evidence that the Defendant's mother didn't love him or was abusive towards the Defendant. Thus,
the court also finds that it is not a stretch to conclude that her passing would have been hard on the
Defendant. The Court finds that these mitigating circumstances were proven and has given
27
DA CF # W7An AU 11A0
slight weight to each in determining the appropriate sentence to be imposed in this case.
31, 32. The Defendant's father was in the U.S. Army and was overseas in someunderdeveloped dangerous areas; The Defendant's father was not home forvery long periods of time and could not be with his son.
Walter Jackson, the Defendant's father, testified during the penalty phase that he served in
the United States Army for fourteen years. During that time, he was stationed in the following
locations away from home: Fort Benning, Georgia; Fort Polk, Louisiana; Fort McClellan, Alabama;
Germany; and Korea. Mr. Jackson further testified that.he lived away from the Defendant and his
family except for when he went on leave from the service for briefperiods during the summer when
the Defendant was a teenager. Mr. Jackson was away from his family for two years while he toured
Germany and for one year while he toured Korea. Even when Mr. Jackson was stationed at Fort
Benning in Georgia, he could not visit his family at home every weekend due to his work
obligations. The Court finds that these mitigating circumstances were proven and have been
given slight weight in determining the appropriate sentence to be imposed in this case.
33, 55, 56. The Defendant did not have a strong male role model growing up; TheDefendant did not have good adult guidance; The Defendant was raisedby various relatives and lived in a dysfunctional family.
Jerorne Durr grew up in Adel, Georgia with the Defendant, and he stated the Defendant did
not have a "singular" stable influence there who was involved in his upbringing. Mr. Durr further
testified that the Defendant was raised by various family members, including the Defendant's older
brother, the Defendant's father, the Defendant's grandfather, and different cousins. As discussed
in mitigating circumstance 32, Walter Jackson testified that while he was away in the service, his
father (the Defendant's grandfather) took care of the Defendant and the Defendant's brothers and
sisters during the Defendant's teenage years. Mr. Jackson further testified the Defendant's mother
also raised the Defendant while he was away. LaQuinta Jackson, the Defendant's half-sister,
PAGE # 0741 OF 1149
testified that, growing up, her mother and father did not regularlyattend the Defendant's recreational
sports games, indicating that the Defendant did not have a continued parental presence in his life
growing up. The Court finds that this mitigating circumstance was proven and has been given
slight weight in determining the appropriate sentence to be imposed in this case.
57. The Defendant was raised in poverty.
Jerome Durr testified that Adel, Georgia, is a very small town ofworking class/poverty level
citizens, which is where the Defendant grew up. Mr. Durr could not say how the "hard times"
affected the Defendant (i.e., when the lumber mill and factories closed in Adel); Mr. Durr testifled
only that a lot of people lost their jobs. However, the totality of the evidence conceming the
Defendant's upbringing in Adel leads the Court to conclude that the Defendant was most likely
raised in a situation where there was little money available for anything except for basic
requirements. The Court finds that this mitigating circumstance was proven and has been
given slight weight in determining the appropriate sentence to be imposed in this case.
IV. The Defendant is a nice, generous, helpful person and friend.
39. The Defendant has a good reputation as a nice individual and good person inAdel, GA., by his friends.
Lequitta Weldon testified that the Defendant coached her in softball in Adel, Georgia, and
he was always friendly and nice. Ridmone Durr testified that the Defendant was a kind person and
always nice in his interactions while they played softball together. Stephen Stafford testified that,
by officiating recreational games, as well as playing such recreational sports, the Defendant used his
time to help, and make better, the community of Adel, Georgia, as well as the people of their
community. The Court f"mds that this mitigating circumstance was proven and has been given
slight weight in determining the appropriate sentence to be imposed in this case.
29
PAGE # 0742 OF 1149
40. The Defendant was not known, by his friends, to be violent.
Ridmone Durr testified that the Defendant used to tell their younger teammates during
softball games that there was no need to get angry or competitive. Jerome Durr testifled that,
growing up with the Defendant, he never knew him to be violent or try to start a fight with another
teammate. The Defendant also presented the testimony of Ms. Tracy Dyal in support of this
mitigating circumstance. Ms. Dyal testified that during all the long hours she worked alone with the
Defendant at Bryant Displays, she felt safe. She stated that she even felt safer with the Defendant's
presence at the workplace. Ms. Dyal's father, Mr. Don Meaders, testified that although he knew of
the Defendant's criminal past, he did not fear for the safety ofhis daughter while she worked with
the Defendant. Mr. Meaders stated that ifhe did have such concern, he would not have allowed Ms.
Dyal to work alone with the Defendant. Aileen Gibbs stated that since the Defendant has been
incarcerated in the Duval County Jail, he has been able to "de-escalate" situations which occur in
the jail that would have gotten out of hand, indicating that he is not a violent person. The Court
finds that this mitigating circumstance was proven and has been given slight weight in
determining the appropriate sentence.to be imposed in this case.
41. The Defendant was not a trouble-maker as a child or teenager,
Walter Jackson testified that growing up, the Defendant "wasn't a bad kid, he was pretty
good." The testimony of Ridmone Durr, Jerome Durr, and Stephen Stafford indicated that while
growing up, they all played sports with the Defendant. None ofthese three witnesses testified that
the Defendant was a trouble-maker as a child or teenager. The Court finds that this mitigating
circumstance was proven and has been given slight weight in determining the appropriate
sentence to be imposed in this case.
30
DA C_F # A7A'1 AF 1 TA0
47. - The Defendant was humble, generous, and helped others.
Lequitta Weldon testified that the Defendant helped her learnhew to play so ftball and he was
very supportive. Stephen Stafford believes the Defendant is a very helpful person and saw the
Defendant teach others how to play sports. Ridmone Durr testified that the Defendant was a very
humble person but acted as a leader oftheir softball team by encouraging and helping his teammates.
The Defendant also used to help Mr. Durr load and unloadhis semi-trucks. Annie Scott testified that
the Defendant was always care-giving to other people, very helpful, and generous. The Defendant
always offered to help out at the church, for example, with moving things or getting things together;
�042Ms.Scott could always rely on the Defendant. Aileen Gibbs stated that the Defendant always helps
others in making positive choices in their lives. Specifically, she further stated that since the
Defendant has been incarcerated, he has especially attempted to help younger inmates makepositive
changes in their lives. Nathan Bernard volunteers at the Duval County Jail and helps facilitate a
twelve-step program at the jail for inmates. Mr. Bernard stated that when the Defendant speaks at
his meetings, all the other inmates listen to what he has to say. Debra Jackson testified that helping
others is part of the Defendant's character and who he is as a person. The Court finds that this
mitigating.circumstance was proven and has been given some weight in determining the
appropriate sentence to be imposed in this case.
49. The Defendant was a good and trusted friend.
Ridmone Durr testified that he has known the Defendant since he was eight years old. The
Defendant is one of Mr. Durr's best friends. Annie Scott testified that she was friends with
Defendant and his wife in around 2001 and she spent a lot of time with them at church, although she
knew of the Defendant's criminal past. Don Meaders testified that, although he knew about the
Defendant's criminal past, the Defendant was "very upfront and honest and we became friends."
31
The Court finds that this mitigating circumstance was proven and has been given slight weight
in determining the appropriate sentence to be imposed in this case.
60. The Defendant is trustworthy and has a good heart.
Nathan Bernard testified that while he worked with the Defendant in the construction
business, the Defendant often had interaction with his family often and this did not concern Mr.
Bemard. Specifically, the Defendant visited Mr. Bernard's home and played sports with Mr.
Bemard's young son. TracyDyal testified that the Defendant was a trustworthy employee and she
never had any concerns working with him. Ms. Dyal stated that she brought her child to work and .
the Defendant interacted well with her son. Ms. Dyal further testified that the Defendant was
cautious with her son and always wanted her son to stay in the safe areas ofthe workplace. Finally,
Ms. Dyal testified that she felt safer working late at night with the Defendant there with her. Don
Meaders knew of the Defendant's criminal past, but hired him to work at Bryant Displays anyway.
Mr. Meaders had no concems about the safety ofhis daughter, Ms. Dyal, while she worked with the
Defendant. Aileen Gibbs stated that the Defendant always has something good to say about others
and that he displays genuine concern about others. The Court finds that this mitigating
circumstance was proven and has been given some weight in determining the appropriate
sentence to be imposed in this case.
V. The Defendant is athletic, dependable, and helped children learn sports.
42, 43. The Defendant was a good athlete and coached softball for the area children;The Defendant gave his time to children, their families, was a great mentor foryoungsters, and taught them good lessons about patience.
Lequitta Weldon testified she has known the Defendant for almost twenty years and he
coached her in softball while she was growing up. The Defendant was a good coach and worked
well with the other coaches. Ms. Weldon stated that the Defendant was a good person, as well as
32
PAGE # 0745 OF 1149
a good role/mentor to the kids on the softball team. Ms. Weldon further testified that the Defendant
always encouraged her and the other players to do better next time; he was a good role model for all
the kids on the team.
LaQuinta Jackson testified that the Defendant liked to play sports while she grew up, and she
watched him play in his games, particularly baseball games. Penny Williatns testified that the
Defendant taught her how to play sports. Specifically, Ms. Williams stated that the Defendant spent
his time growing up teaching her and her little cousins how to play sports. The Court finds that
these two mitigating circumstances were proven and have been given slight weight in
determining the appropriate sentence to be imposed in this case.
44. The Defendant was a nurturing and caring person with children, verydependable, and one you could rely upon and trust.
Lequitta Weldon stated that the Defendant was a supportive, caring, and dependable person,
especially when he acted as her head softball coach when the head coach could not attend. Penny
Williams testified that the Defendant taught her and her little cousins how to play sports, indicating
he was a nurturing and caring person toward children. Stephen Stafford testified that the Defendant
was very kind. Mr. Stafford further testified that he believes that the Defendant used his time to
better their community of Adel, Georgia, as well as the people of their cornmunity. Ridmone Durr
testified that the Defendant was a very dependable person. Annie Scott, who attended church with
the Defendant and his wife, testified that she could always rely upon the Defendant, as he was a very
dependable person. Nathan Bernard worked with the Defendant in the construction business; he
testified that the Defendant was very reliable and was somebody he could depend on. The Court
finds that this mitigating circumstance was proven but has been given slight weight in
determining the appropriate sentence to be imposed in this case.
33
46. The Defendant was an excellent athlete, dependable, and a good teammate.
Walter Jackson testified that the Defendant played sports, and he was talented in a!! sports
but "really good" at baseball and football. Penny Williams testified that the Defendant was a great
athlete in playing baseball, softball, and football.
Ridmone Durr testified that he has known the Defendant since he was eight years old, and
he played humerous sports with the Defendant, including recreational footba!! and adult recreational
softball. Mr. Durr stated the Defendant was a great ballplayer, one of the best on the team, and he
was a very dependable person. Mr. Durr further testified that the Defendant was a great teammate
and always encouraged his teammates. Additionally, Mr. Durr stated that the Defendant functioned
as the leader of their team and encouraged his teammates to never give up on the game, Stephen
Stafford testified that he knew the Defendant growingup and he played various sports with him. Mr.
Stafford officiated several ofthe Defendant's games and observed that the Defendant was motivated,
had a good work ethic, and motivated his teammates. Mr. Stafford stated that the Defendant was the
"all around teammate." Jerome Durr testified that he played sports with the Defendant and he
observed him as being determined, dedicated to succeed, and dependable. The Defendant was a
good teammate, always encouraged his teammates, and acted as a very positive influence on his
teammates. The Court notes that none ofthe testimony presented is relevant to the time surrounding
the capital murder. The Court finds that this mitigating circumstancewas proven but has been
given slight weight in determining the appropriate sentence to be imposed in this case.
51. The Defendant was proud of and a good representative of the team SouthGeorgia Soldiers.
Stephen Stafford testified that the Defendant played on this adult traveling softball team; he
officiated games in which the Defendant played for this team. Mr. Stafford observed that the
Defendant was a good motivator to the other players on the team. The Defendant also treated the
34
PAGE # 0747 OF 1149
team and his teammates with respect, Although Jerome Durr did not specify the name of the
traveling softball team on which he played with the Defendant, this Court discerned that Mr. Durr
referred to the South Georgia Soldiers. .Mr. Durr stated that the Defendant was very dedicated to the
team and he was "determined." The Court finds this mitigating circumstance was proven and
has given it slight weight in determining the appropriate sentence to be imposed in this case.
VL The Defendant was a polite, respectful person.
48. The Defendant was a gentleman and respectful of women.
Tracy Dyal testified that the Defendant always walked her out to her car after they worked
together late at night at Bryant Displays. She also testified that the Defendant used to do the same
for anyone else working late at night. The Court finds that this mitigating circumstance was
proven and has been given slight weight in determining the appropriate sentence to be
imposed in this case.
50, 53. The Defendant was not rude to friends or strangers; The Defendant was polite,respectful, and had good manners.
Lequitta Weldon testified that she never heard "any bad language come out of [the
Defendant's] mouth." Ridmone Durr testified that, in all the years he has known the Defendant, he
never saw the Defendant act in a disrespectful manner around others. Mr. Durr further testified that
the Defendant was "an admirable young man," always respectful toward others during the time they
grew up together. Mr. Durr stated that the Defendant "would always give people the shirt offhis
back ifhe could" and he characterized Defendant as a "mild young man." Stephen Stafford testified
that he observed the Defendant's interactions with his teammates, and he noticed that the Defendant
was a very kind person who was never rude. Mr. Stafford also testified that the Defendant treated
his teammates with great respect. Annie Scott testified that the Defendant was a "very respectable
and mannered person."
35
PAGE # 0748 OF 1149
Tracy Dyal testified that while the Defendant worked with her at Bryant Displays, he used
to walk her, and any other employees working late at night, out to their cars. Ms. Dyal further
testified that the Defendant was always friendly with her young son when he visited the workplace
after school. Aileen Gibbs stated that the Defendant always has something good to say about others,
he displays genuine concern about others, and he always helps others in making positive choices in
their lives. Ms. Gibbs further stated that the Defendant tries to guide the other inmates at the jail,
especially younger inmates, and help them make positive changes in their lives. Ms. Gibbs testified
the Defendant has told her that since he has been incarcerated, the other inmates respect him. Debra
Jackson testified that the Defendant is always willing to help others, even strangers, learn from their
mistakes. The Court finds that these mitigating circumstances were proven and have been
given slight weight in determining the appropriate sentence to be imposed in this case.
VIL The Defendant is a religious person.
52,54. The Defendant'is religious, believes in and gave himself to God; The Defendantand his wife hosted church functions at their home.
Lequitta Weldon testified that the Defendant and his wife attended church service with her
at the same church in Georgia, over ten years ago from the date of her testimony. Annie Scott
testified that she met the Defendant and his wife through her church in the early 2000s and the
Defendant was active in the church. Ms. Scott testified that the Defendant and his wife held prayer
meetings at their home and they studied the Bible together. Ms. Scott further stated that she spoke
with the Defendant in the early 2000s and he expressed regret and remorse for things in his past and
wanted to move forward with his faith in God. The Defendant's wife, Debra Jackson, also testified
that she and the Defendant held prayer meetings and Bible studies at their home. Don Meaders, the
owner ofBryant Displays, the Defendant's former employer, testified that although he knew ofthe
Defendant's criminal past, he often prayedwith the Defendantduring his employ. The Court finds
36
PAGE # 0749 OF 1149
that this mitigating circumstance was proven and has been given seine weight in determhting
the appropriate sentence to be imposed iri this case.
VIIL The Defendant is a hard-working person.
58. The Defendant is a productive and hard worker.
LaQuinta Jackson testified that the Defendant was always a hard worker. Stephen Stafford
testified that the Defendant was a very motivated person, he was a hard worker, and he had very
good work ethic. Nathan Bernard has known the Defendant for nine to ten years, and they worked
in the residential construction business together. Mr. Bernard stated that the Defendant was a hard
worker, he kept morale high on the job, and the Defendant encouraged him at work.
Ridmone Durr described the Defendant as being very hard-working and having a great work
ethic, as the Defendant helped him unload his semi-trucks and make deliveries. Mr. Dutt testified
that the Defendant "did most of the work" and always volunteered to lift and stack the boxes in the
truck. In the context ofsports, Mr. Durr stated that the Defendant always "gave it a hundred and ten
percent effort" and that the Defendant was always a hard worker on the field.
Tracy Dyal was the Defendant's manager at Bryant Displays for a few years. Ms. Dyal
testified that while the Defendant worked there, he was a "fantastic, wonderful worker." She had
no issues with the Defendant not coming to work, indicating he is a dependable worker. The
Defendant was protective of the workers and wanted to keep them safe, due to the dangerous area
of town in which the business is located. Ms. Dyal testified that the Defendant was a very nice
worker and that she felt safer with the Defendant there with her at work, rather than if she worked
alone. Don Meaders owned BryantDisplays during the time the Defendant worked there in the early
2000's. Mr. Meaders testified that the Defendant was a verygood worker and that his abilities were
"very good." The Defendant always worked the hours requested of him, which usually included
37
DA( F # A7CA AU 11AQ
having to work long hours or into the evenings or weekends, in order to meet deadlines. The Court
finds that this mitigating circumstance was proven and has been given some weight in
determining the appropriate sentence to be imposed in this case.
59. The Defendant grasps artistic concepts easily, perseveres through hard work,and is a good project worker.
Tracy Dyal testified that, during his employ at her company, the Defendant was a quick
learner, never objected to the type ofwork she asked him to complete, and worked "whenever we
needed him." Additionally, Ms. Dyal stated that the Defendant was able to catch on to the work she
asked ofhim and even had suggestions about how to make projects better. Ms. Dyal testified that
the Defendant mainly worked within the shop, doing construction and putting things together. The
Defendant used to work very late into the evening and sometimes really late at night. The Defendant
helped her company greatly through his work. Mr. Meaders, the ownei- of Bryant Displays, the
Defendant's previous employer, testified that the Defendant's abilities at work were "very good."
Specifically, Mr. Meaders stated that the Defendant was able to build graphic design exhibits for
national trade shows by using power tools and design construction. The Defendant always worked
the hours requested ofhim, which usually included having to work long hours or into the evenings
orweekends, in order to meet deadlines. Mr. Meaders testified that the Defendant was always there
when he was needed at work and never complained about the work hours. The Court finds that
this mitigating circumstance was proven and has been given some weight in determining the
appropiriate sentence to be imposed in this case.
IX. The Defendant always had a positive outlook on life.
61. LaQuinta Jackson testified that she grew up with the Defendant and he always stayed
positive in life. Penny Williams testified that the Defendant was always a positive person growing
up as a kid. Aileen Gibbs testified that she and the Defendant have exchanged written
PA CE R 8751 OF 1149
correspondence since he has been incarcerated, and she visits him at the jail. In his letters and during
visits, Ms. Gibbs stated that the Defendant always appears upbeat, encouraging, and motivated. The
Defendant always tries to encourage others to also be positive and better themselves by making
positive decisions. Debra Jackson testified that the Defendant always encourages others to make
positive decisions in their lives. The Court finds that this mitigating circumstance was proven
and has been given slight weight in determining the appropriate sentence to be imposed in this
case.
X. The Defendant's friends and associates will continue to foster a positive relationshipand visit him while he is incarcerated.
62. Walter Jackson testified that he wants to be in the Defendant's life. He has written the
Defendant letters and visited him in Georgia while the Defendant was incarcerated there. Mr.
Jackson stated he will continue to write the Defendant letters every chance he can, and continue to
visit him in prison whenever he possibly can. LaQuinta Jackson testified that she will make a better
effort to contact the Defendant and maintain a relationship with him while he is in prison. Penny
Williams has maintained contact with the Defendant since 2005 when he became incarcerated; she
has visited him in jail and he has written her letters and called her on the telephone. Ms. Williams
testified she will continue to stay in contact with the Defendant. She stated that when she has the
chance, she will visit the Defendant in prison and continue to write him letters while he is
incarcerated.
Kenyetta Jackson testified that she will continue to stay in contact with her father while he
is in prison. Timothy Bryant testified that he intends to continue to communicate with his stepfather
through the telephone and visit the Defendant in prison. Mr, Bryant stated that when he has the
opportunity to travel to Florida, he will visit the Defendant. Debra Jackson testified that she will
stand by the Defendantregardless ofthejury'srecommendationofpunishment. Since the Defendant
PAGE # 0752 OF 1149
became incarcerated in May of 2005 in Georgia, as well as in the Duval County Jail, she has
continuously visited him, wrote him letters, and accepted his plíone calls. She will continue to stay
in contact with him while he is incarcerated, whether it be for life or to eventually receive the death
penalty. As to the Defendant's family members only, the Court finds that this mitigating
circumstance was proven and has been given some weight in deterinining the appropriate
sentence to be imposed in this case.
As to the Defendant's friends and associates, however, Lequitta Weldon, Ridmone Durr,
Jerome Durr, Stephen Stafford, Tracy Dyal, Don Meaders, and Aileen Gibbs did not testify during
the penalty phase that they would remain in contact with the Defendant while he is incarcerated.
Therefore, as to the Defendant's friends, the Court finds that this mitigatingcircumstancewas
not proven and has been given no weight in determining the appropriate sentence to be
imposed in this case.
XL The Defendant has low-average intelligence.
66. Dr. Jerry Valente testified that he is a Forensic Psychologist and has been practicing in
this capacity for approximately fifteen to eighteen years. Dr. Valente was deemed an expert in
forensic psychology during the penalty phase. He met with the Defendant and his attomeys on April
4, 2013, and on April 15, 2013, and evaluated the Defendant. He opined that the Defendant was
competent to proceed to trial. Dr. Valente stated that the Defendant did not have "any specific
deficits," and the Defendant did not suffer from psychosis or neurosis, nor is the Defendant
delusional However, Dr. Valente opined that the Defendant has a low~average range of intelligence
and a low-average range ofverbal comprehension. Essentially, the Defendant was considered a slow
learner based on his low-average range of intelligence. Ultimately, though, Dr. Valente testified that
the Defendant did not suffer from any brain impairment. The Court f"mds that this mitigating
4U
PAGE # 0753 OF 1149
circumstance was proven and has been given slight weight in determining the appropriate
sentence to be imposed in this case.
XII. The Defendant respects the process, has been polite and cooperative throughout theseproceedings.
67. Dr. Valente testified that during his examination of the Defendant, the Defendant was
cooperative, well-rnannered, and respectful of him and to authority. Dr. Valente stated the
Defendant wanted to assist hirn and the Defendantwas very engaging, polite, and helpful. The Court
observed that the Defendant has exhibited excellent courtroom behavior throughout all of the court
proceedings in this case. The Defendant has participated in group sessions with other prisoners and
has become a leader in those sessions. The Court finds that this mitigating circumstance was
proven and has been given some weight in determining the appropriate sentence to be imposed
in this case.
REMAINING STATUTORY MITIGATING CIRCUMSTANCES
As discussed, the Defendantpresented onlyone statutorymitigating circumstance to thejury.
However, the Court has reviewed each remaining statutory mitigating circumstance and now finds
that no evidence has been presented to support any of the other enumerated statutory mitigating
circumstances under §921.141(6), Fla. Stat.
ENMUND/TISON
As detailed above, the Defense suggested in the guilt phase that the murder was committed
by someone else based on certain items of forensic evidence at the crime scene and the Defendant's
trial testimony denying any involvement in the victim's murder. As a result, the State asked for, and
received, the standardjury instruction on culpability as a principal to a crime. However, thejury was
not asked to make a specific finding in the verdict form as to whether their verdict was based on
direct responsibility or a principal theory.
41
PA CF, # 0754 OF 1149
During the guilt phase, the parties discussed the need to instruct thejury on the requirements
ofEnmund/Tison4 because ofthe possibility that thejury could have based its decision on the theory
ofthe Defendant acting as a principal. Accordingly, the parties agreed to instruct the jury that they
must first unanimously and beyond a reasonable doubt determine if the Defendant "played a
significant role in the murder of Debra Pearce," before deciding if the State proved the existence of
any aggravating factors and weighing those against any mitigating circumstances. Thejury was also
required to expressly make this finding in a special interrogatoryverdict fann before providingtheir
recommended sentence. The jury found that the Defendant did, in fact, play "a significant role" in
Debra Pearce's murder, before voting eight to four to recommend a death sentence.
The Florida Supreme Court summarized the Enmund/Tison exclusion inJackson v. State, 575
So. 2d 181, 190-191 (Fla. 1991):
In Enmund and Tison, the Court said that the death penalty is disproportionalpunishment for the crime of felony murder where the defendant was merely a minorparticipant in the crime and the state's evidence ofmental state did not prove beyonda reasonable doubt that the defendant actually killed, intended to kill, or attemptedto kill Mere participation in a robbery that resulted in murder is not enoughculpability to warrant the death penalty, even if the defendant anticipated that lethalforce might be used, because "the possibility of bloodshed is inherent in thecommission of any violent felony and this possibility is generally foreseeable andforeseen." Tison, 48 I U.S. at 151, 107 S.Ct. at 1684. However, the death penalty inaybe proportional punishment if the evidence shows both that the defendant was amajor participant in the crime, and that the defendant's state ofmind amounted toreckless indifference to human life. As the Court said, "we simply hold that majorparticipation in the felony committed, combined with reckless indifference to humanlife, is sufftcient to satisfy the Enmund culpability requirement." Tison, 481 U.S. at158, 107 S.Ct. at 1688. Courts may consider a defendant's "major participation" ina crime as a factor in detennining whether the culpable state of mind existed.However, such participation alone may not be enough to establish the requisiteculpable state ofmind. Id., 481 U.S. at 158 n. 12, 107 S.Ct. at 1688 n. 12.
Although the U.S. Supreme Court has held that an Enmund/Tison decision can be made by a jury,
4 Enamnd y, Morida, 458 U.S. 782; 102 S.Ct. 3368 (1982); Tison v. Arizona, 48 i U.S. 137; 107S.Ct. 2969 (1989).
42
PAGE # 0755 OF 1149
the trial judge, or an appellate court, Cabana v. Bullock, 474 U.S. 376; 106 S.Ct. 689 (1986), the
Florida Supreme Court mandates that juries be instructed on the requirements of Enmund/Tison
before penalty phase deliberations, and that trial courts must make findings that satisfy those
requirements before imposing a sentence of death. See Perez, 919 So. 2d at 365-366.
The Florida Supreme Court in Perez approved the giving ofthe following instruction on the
Enmund/fison requirements:
In order for you to recommend a sentence ofdeath in this case you must find [Perez]was a major participant in the crime ofrobbery or burglary and that [Perez's] stateof mind at the time amounted to wreckless [sic] indifference to human life.
Id. at 366. In this case, however, the parties agreed upon an instruction that advised the jury that they
must determine ifthe Defendant "played a significant role in the death ofDebra Pearce" and did not
provide any instructions concerning the Defendant's state of mind (i.e., reckless indifference to
human life). Thus, the jury instruction and special interrogatory verdict form did not accurately
reflect the criteria for satisfying Enmund/Tison.
Although the jury was not properly instructed as to the requirements of Enmund/Tison, the
Court finds upon further research and reflection that such an instruction was not necessary under the
facts and circumstances of this case. The Enmund/Tíson exclusion concerns the proportionality of
the death penalty for the crime of felony murder where the defendant is only a minor participant in
the offense and does not have the requisite mental state that amounts to a reckless índifference to
human life. See Jackson, 575 Sci. 2d at 190; see also Van Poyck v. State, 116 So. 3d 347, 359 (Fla.
2013) cert. denied, 133 S. Ct, 2823 (2013) (holding that "[b]ecause Van Poyck played a "major role"
in this felony-murder and acted with "reckless indifference to human life," Van Poyck's sentence
of death meets the Enmund/Tison standard"); Stephens v. State, 787 So. 2d 747, 759 (Fla. 2001)
(discussing Enmund and Tison in terms ofproportionality ofa death sentence in the felony-murder
43
PAGE # 0756 OF 1149
context); DuBoise v. State, 520 So. 2d 260, 265 (Fla. 1988) (explaining that "[i]n Tison the Court
stated that Enmund covered two types of cases that occur at opposite ends of the felony-murder
spectrum .. . the minor actor in an armed robbery, not on the scene, who neither intended to kill nor
was found to have had any culpable mental state" and "the felony murderer who actually killed,
attempted to kill, or intended to kill"). In other words, the Enmund/Tison criteria must be satisfied
forpurposes of the Eighth Arnendment in those cases where a defendant aids or abets a felony in the
course of which a murder is committed by others, but who does not himselfkill, attempt to kill, or
intend that a killing take place or that lethal force will be employed. See Enmund, 458 U.S. at 797,
I 02 S.Ct.at 3376. These requirements are not necessary in cases where the State seeks a conviction
based only upon a theory that the defendant had the premeditated intent to kill a victim and did some
act in furtherance ofthat intent.
In the instant case, the State sought a conviction against the Defendant based solely on a
theory that he had the premeditated intent to kill Debra Pearce. Thejurywas instructed in the guilt
phase of the trial that in order to convict, they must find that 1) Debra Pearce is dead; 2) the death
was caused by the criminal act of Kim Jackson; and 3) there was a premeditated killing of Debra
Pearce. The jury was never instructed that the Defendant could be found guilty of first degree
murder on the alternate theory of felony murder, and the State never argued such a theory to thejury,
either. Enmund/Tison does not apply in the instant case because the State relied exclusively upon a
theory ofpremeditated intent to kill on the part of the Defendant and the instruction that was given
was superfluous, at least in terms of the requirements for satisfying the Eighth Amendment of the
United States Constitution.
The fact that the jury could have found the Defendant guilty of First Degree Murder
vicariously through the acts of another unknown assailant under a principal theory did not require
44
DACR H nw OR 11AO
an Enmund/Tison instruction in the penalty phase, either. With respect to culpability as a principal,
thejurywas given the standard instmetion in the guilt phase that the Defendant was responsible for
the acts of another if he helped another person or persons commit the crime and 1) the Defendant
had a conscious intent that the criminal act be done; and 2) the Defendant did some act or said some
word that was intended to, and did, incite, cause, encourage, assist or advise the other persons to
actually commit the crime. Assuming for the sake ofargument that the jury based its determination
ofguilt on a principal theory, the jury would have necessarily concluded that a) the Defendant had
helped the unknown assailant when the Defendant had a conscious intent to kill Debra Pearce and
b) that he did some act to cause, encourage, or assist the other person in actually carrying out the
killing. Enmund/Tison was satisfied the moment the jury came to that conclusion in the guilt phase,
provided that the principal theory was in fact the basis of their decision. See Perez, 919 So. 2d at
366-367 (Where trial court gave standard instruction regarding principal responsibility,
"[s]atisfaction of these criteria alone would indicate major participation in the commission of a
crime.").
Moreover, the evidence in this case overwhelminglysatisfied theEnmund/Tison requirements
ofmajor participation and reckless indifference to human life. The forensic evidence in this case has
been set forth, in detail, above. The bloody fingerprint on the sink next to the victim's body and the
pulled hair lying on her calf indicate the Defendant's participation in the struggle that led to her
death, and would more than qualify for majorparticipation. Furthermore, the Defendant's presence
and participation in a struggle where a knife was used to inflict two fatal wounds, along with
defensive wounds and numerous other injuries, would clearly rise and exceed the level of reckless
indifference to human life.
45
PAGE # 0758 OF 1149
CONCLUSION
"[T]he death penalty must be limited to the most aggravated and least mitigated of first-
degree murders." Larkins v. State, 739 So, 2d 90, 92-93 (Fla. 1999). The Court has carefully
considered and weighed the aggravating and mitigating circumstances found to exist in this case.
Understanding that this is not a quantitative comparison, but one which requires qualitative analysis,
the Court has assigned an appropriate weight to each aggravating circumstance and each mitigating
circumstance as set forth in this Order. As noted above, the Court gave great weight to the heinous,
atrocious, or cruel aggravating circumstance, the prior violent felonyaggravating circumstance, and
the capital felony committed while under a sentence ofimprisonment aggravating circumstance. On
balance, these aggravating circumstances far outweigh the mitigating circumstances present in this
case.
In reviewing the mitigation evidence, the Court is struck by the fact that it appears by all
accounts that the Defendant had what most people would consider to be a good home and family life.
He had a stable and loving marriage with a stepson in the military and a daughter in college. While
not wealthy, the Defendant and his family did not lack for the necessities in life, including
comfortable housing, food, and transportation. Although the Defendant did spend time in prison for
the 1992 assault charge, the evidence shows that he was able to resume his life wiih fewerdifficuities
than most convicted felons experience upon their release. The Defendant had a large circle of
childhood friends and family in the town ofAdel, Georgia, where he grew up and regularly visited.
His childhood was not particularly difficult, at least to the extent that there was no evidence that he
suffered any abuse or trauma. Throughout his life, he was able to enjoy the things rnost people enjoy
such as participating in sports and spending time with friends and family. The Defendant suffered
from no discernible mental health condition and the Court was not presented with any mental
46
PAGE # 0759 OF 1149
mitigation evidence of any significance.
This portrait of the Defendant as a husband, father, and friend stands in stark contrast with
the reality that the Defendant committed a brutal and savage murder for reasons that, at least for now,
remain unknown. The dual nature of the Defendant's life is further exemplified by the fact that he
committed an Armed Robbery in Adel, Georgia, while undoubtedly on a visit to his family in the
area. From the evidence, the Defendant has consistently led an entirely separate life from the one
known to his family and friends that involved a repeated willingness to resort to violent criminal acts
to further his intentions. Evengiving moderate weight to the fact that the Defendant appears to have
been a good husband and father to his daughter and stepson, the mitigation evidence presented to the
Court is far outweighed by the aggravating factors present in this case.
This case has marked similarities to the case ofHildwin v. State, 727 So.2d 193 (Fla. 1998),
where the Florida Supreme Court affirmed the imposition of the death penalty where the defendant
strangled the victim.' In Hildwin, the Florida Sunreme Court held that the death penalty was
appropriate and proportional where the trial court found the existence of the following four (4)
aggravating factors: HAC; prior violent felony conviction (2 prior convictions); previously convicted
ofa felony and under a sentence of imprisonment (parole); and pecuniary gain. Id. at 198. The Court
in the.Hildwin opinion quoted extensively from the trial court's evaluation of the aggravating and
mitigating factors:
At the time of the murder, it would appear that the defendant was decently situatedmaterially. He had gotten out ofprison and had relocated to Florida. While true thathe was on parole, he lived a fairly normal life. He had a girlfriend, and he lived withhis father in a mobile home in the woods. He was living like a normal citizen. The
5After the first trial, the Court initially vacated the sentence ofdeath on grounds ofineffective assistance of counsel during the penalty phase and remanded for a new sentencinghearing. Hildwin v. State, 654 Sc. 2d 107 (Fla. 1995). After the trial court resentenced thedefendant, the Court affirmed it on direct appeal
47
PAGE # 0760 OF 1149
evidence of this case indicated that the defendant enjoyed the things that most of usenjoy, the company of friends, movies, and so forth. Yet the defendant wasapparently not satisfied by this peaceful coexistence. For some strange reason, notnearly understandable, even given the intense psychological scrutiny to which thedefendant has been subjected, the defendant decided to commit a senseless, wasteful,and unnecessary murder, apparently motivated primarily for economic gain. Hebrutally killed a young woman merely to acquire some money with which to put gasin his car, and for a few personal possessions with which to stock his bedroom. Thisruthless, savage, cruel and unnecessarymurder cannot be lawfullyjustified under anycircumstances present in this case, even considering the mitigating factors present,and giving them some weight.
Id.
Moreover, the defendant in Hildwin had the additional mitigating factors of a "horrible
childhood," a history of drug and substance abuse, and "organic brain damage" that resulted in a
mental illness that was."appropriate and treatable in prison." See, Hildwin v. State, 84 So. 3d 180,
191 (Fla. 2011)(quoting additional findings made by the trial court in second post-conviction
appeal). None of that additional mitigation, however, is present in the instant case.
The jury was fully justified in its eight-to-four recommendation that the death penalty be
imposed upon the Defendant for his murder of Debra Pearce. The Court is required to give great
weight to the jury's recommendation6 and fully agrees with thejury's assessment ofthe aggravating
and mitigating circumstances in this case. After also considering the additional mitigating
circumstances presented during the Spencer hearing, the Court finds that the ultimate penalty which
the Court can impose should be irnposed.
6 Blackwood v. State, 946 So, 2d 960 (Fla. 2006); Tedder v. State, 322 So.2d 908, 910 (Fla.1975) (stating that under Florida's death penalty statute, the jury recommendation should be given greatweight).
PAGE # 0761 OF 1149
